UNITED STATES DEPARTMENT OF LABOR
MINE SAFETY AND HEALTH ADMINISTRATION
In the Matter of: )
)
OCCUPATIONAL NOISE EXPOSURE )
PUBLIC HEARING )
Pages: 1 through 139
Place: Atlanta, Georgia
Date: May 28, 1997
UNITED STATES DEPARTMENT OF LABOR
MINE SAFETY AND HEALTH ADMINISTRATION
In the Matter of: )
)
OCCUPATIONAL NOISE EXPOSURE )
PUBLIC HEARING )
Wednesday,
May 28, 1997
Meeting Room
Holiday Inn Airport South
5010 Old National Highway
Atlanta, Georgia
The above entitled matter came on for
hearing, pursuant to notice, at 9:05 a.m.
BEFORE:
KENNETH HOWARD, Director,
MSHA Office of Technical Support
MICHAEL VALOSKI, Presiding
Office of Technical Support
ROSLYN FONTAINE
Office of Standards, Regulations and
Variances
JAMES CUSTER
Office of Metal and nonmetal Mine Safety
ROBERT A. THAXTON
Office of Coal Mine Health
SANDRA WESDOCK
Office of the Solicitor
VICTORIA PILATE
Office of Standards, Regulations and
Variances I N D E X
SPEAKERS: PAGE
Lee Lemke 14
Georgia Mining Association
Len Etheridge 16
Georgia Mining Association
Bill Yarbrough 27
Dry Branch Kaolin Company
Steve Minshall 31
American Portland
Cement Alliance
Greg Frazier 55
Thiele Kaolin Company
Pete Martinez 65
TUMCO
Glen Hood 75
TUMCO
Charles Machemehl 77
Georgia Crushed
Stone Association
Ken Stockton 85
Georgia Crushed
Stone Association
Dewey McCabe 110
Oil Dry Company
Maurice Gibson 126
A&M Products
P R O C E E D I N G S
MR. HOWARD: My name is Kenneth Howard. I am the
Director of MSHA's Office of Technical Support and I'd to
welcome you MSHA's public hearing on the proposed standards
for occupational noise exposure in coal and metal and
nonmetal mines.
Let me first introduce the members of today's
panel. Starting on my far right is Roslyn Fontaine of the
Office of Standards, Regulations and Variances. Next to her
is James Custer, from the Office of Metal and Nonmetal Mine
Safety. Immediately to my right is Robert Thaxton, from the
Office of Coal Mine Health. On my far left is Victoria
Pilate from the Office of Standards, Regulations and
Variances. Next to her is Sandra Wesdock, from the Office
of the Solicitor, and immediately to my left is the
moderator for today's hearing who will be Mike Valoski from
the Office of Technical Support at MSHA.
Let me apologize first for my head cold and hope
that I can get through this and you still understand what
I'm saying.
We are here to listen to your comments on the
December 17, 1996 proposed rule revising certain portions of
the existing health standards for occupational noise
exposures in coal and metal and nonmetal mines. The
hearings are being held in accordance with section 101 of
the Federal Mine Safety and Health Act of 1977 and as is the
practice of our Agency, formal rules of evidence will not
apply.
First of all let me give you a little background
on the proposed rule. MSHA published an Advance Notice of
Proposed Rule making on December 4, 1989, as part of the
Agency's ongoing review of its safety and health standards.
The Agency's existing noise standards, which were
promulgated more than 20 years ago, are inadequate to
prevent the occurrence of occupational noise-induced hearing
loss among miners. In the Advance Notice of Proposed Rule
making, the Agency solicited information for revision of
noise standards for coal and metal and nonmetal mines. The
comment period for that proposal was closed on July 15,
1990.
On December 17, 1996, in response to information
received on the Advance Notice of Proposed Rulemaking, MSHA
published the proposed standard. The Agency has developed a
proposal that it estimates can reduce by two-thirds the
number of miners currently projected to suffer material
impairment of their hearing but which it estimates can be
implemented at a cost of less than $9 million to the mining
industry as a whole.
The focus of the proposal is on the use of the
most effective means of control -- to control noise,
engineering controls to eliminate the noise, or
administrative controls, for example rotating miners duties,
to minimize noise exposure whenever feasible.
The proposed standard would retain the existing
permissible exposure level, the PEL. It would also
establish a new action level of an 8-hour time-weighted
average of 85 dBA. If a miner's exposure exceeds the PEL,
the proposal would require that the mine operator use
feasible engineering and administrative controls to reduce
noise exposure to the PEL. If engineering and
administrative controls do not reduce the miner's exposure -- noise exposure to the PEL, the operator must use controls
to lower exposure to as close to the PEL as is feasible or
achievable. In addition, the operator would have to provide
any exposed miner annual audiometric examinations, properly
fitted hearing protection, and ensure that the miner takes
the annual audiometric examination and uses such protection.
The comment period was extended from February 18,
1997 to April 21, 1997, due to requests from the mining
community. MSHA has received a broad range of comments from
over 60 different interests, which include mine operators,
industry trade associations, organized labor, colleges and
universities, and noise equipment manufacturers. The
comments addressed the primary provisions of the proposed
rule, such as the action level, the PEL, methods of
compliance, exposure monitoring and audiometric testing.
Now, let me discuss a few of the specific
provisions of the proposed rule. Exposure to noise is
measured under proposed section 62.120. The proposed
section would require that a miner's noise exposure not be
adjusted for the use of hearing protectors, that a miner's
noise exposure measurement integrate all sound levels from
80 dBA to at least 130 dBA during the miner's full work
shift, and that the current 5 dB exchange rate to measure
the level of a miner's noise exposure would continue to be
used.
An action level of 85 dBA during any work shift,
or equivalently a dose of 50 percent, would also be
established under the proposed rule. For miner's who are
exposed to the 85 dBA action level, the proposed rule does
not require the use of engineering and administrative
controls. Rather, operators would be required to provide
personal hearing protection upon a miner's request, annual
employee training, and enrollment in a hearing conservation
program.
The proposed rule would also retain the existing
PEL of 90 dBA, requiring that no miner be exposed to noise
exceeding a TWA-8 or 90 dBA during any work shift, or
equivalently a dose of 100 percent. While the PEL would not
change, the actions required if noise exposure exceeds the
PEL are different from the current requirements.
MSHA's existing metal and nonmetal noise
standards, for example, already require the use of feasible
engineering or administrative controls when a miner's noise
exposure exceeds the PEL. The existing standards, however,
do not require the mine operator to post the procedures for
any administrative controls used, to conduct specific
training, or, to enroll miners in a hearing conservation
program.
Under MSHA's current coal mining standard, a
citation is not issued when a miner's exposure exceeds the
PEL if appropriate hearing protection is used by the miners.
In the event of a violation of the coal mining standard,
operators are required to promptly institute engineering or
administrative controls and to submit to MSHA a plan for the
administration of a continuing, effective hearing
conservation program.
The proposed rule however, would establish a
hierarchy of controls for all miners when exposure exceeds
the PEL. In addition, other aspects of the rule increase
protection of miners and further reduce the potential for
hearing loss. Under the proposal, mine operators must first
utilize all feasible engineering and administrative controls
to reduce sound levels to the PEL before relying on any
other controls to protect against hearing loss.
Furthermore, an operator would be required to ensure that a
miner whose exposure exceeds the PEL takes the hearing
examination offered through enrollment in the hearing
conservation program.
Under proposed section 62.120(f), MSHA would
require operators to establish a system of monitoring which
effectively evaluates each miner's noise exposure. The
proposal would also require that within 15-calendar days of
determining that a miner's exposure exceeds the action
level, the PEL, the dual-hearing protection level, or the
ceiling level, the mine operator notify the miner in writing
of the overexposure and the corrective action being taking
pursuant to section 103(c) of the Mine Act.
The proposed rule also provides for hearing
protection and training. Under proposed section 62.125,
miners would be given a choice from at least one muff type
and one plug type hearing protector. Under section 62.130,
miners would be given required training.
Additionally, under proposed section 62.140,
operators would be required to offer baseline audiograms to
miners enrolled in a hearing conservation program, that is,
when a miner's exposure exceeds the action level. Prior to
conducting the baseline audiogram, operators would be
required to make certain that miners have at least a 14-hour
period where they are not exposed to workplace noise. Use
of hearing protectors as a substitute for this quite period
would be prohibited. The proposed rule would also require
mine operators to offer a valid audiogram at intervals not
exceeding 12 months for as long as the miner remains in the
hearing conservation program.
Proposed section 62.150, would required the
operator to assure that all audiometric testing is conducted
in accordance with scientifically validated procedures.
MSHA would also require that audiometric test records be
maintained at the mine site for the duration of the affected
miner's employment plus at least 6 months thereafter.
Under proposed 62.160, operators would have a 30
day -- have 30 days in which to obtain audiometric test
results and interpretations. Additionally, under proposed
section 62.180, MSHA would require that unless a physician
or audiologist determines that a Standard Threshold Shift is
neither work related nor aggravated by occupational noise
exposure, within 30 calendar days of receiving evidence of a
Standard Threshold Shift, or results of a retest confirming
a Standard Threshold Shift, the operator must do the
following:
(1) retrain the miner;
(2) allow the miner to select a hearing protector, or
a different hearing protector; and,
(3) review the effectiveness of any engineering and
administrative controls to identify and correct any
deficiencies.
Proposed section 62.190 would require that within
10 working days of receiving the results of an audiogram, or
receiving the results of a follow-up evaluation, the
operator notify the miner in writing of the results and
interpretation of the audiometric test, including: (1) any
finding of a Standard Threshold Shift or reported hearing
loss; and, (2) if applicable, the need and reasons for any
further testing or evaluation.
Finally, the proposed rule would require that the
operator provide the miner, upon terminate -- on termination
of employment, with a copy of all records that the operator
is required to maintain under this part, without cost to the
miner.
Now, this is the fifth of six hearings that we are
holding. We will also be receiving comments and testimony
on the proposed rule in Washington, D.C., on May 30. The
hearing will begin at 9:00 a.m and end at 5:00 p.m. If
necessary, however, MSHA will continue the hearing into the
evening hours.
A verbatim transcript of the hearing is being
taken. It will be made an official part of the rulemaking
record. The hearing transcript, along with all the comments
that MSHA has received to date on the proposed rule, will be
made available to the public. If you wish a personal copy
of the hearing transcript, however, you can make your own
arrangements with the reporter. I will now turn the hearing
over to Mike Valoski, from the Office of Technical Support.
MR. VALOSKI: Good Morning. I am Mike Valoski,
and I will be the moderator for this public hearing. The
Mine Safety and Health Administration view these rulemaking
activities as extremely important and knows that your
participation is also a reflection of the importance that
you attach to the rulemaking.
To ensure that an adequate record is made during
this proceeding, when you present your oral statements or
otherwise address the panel, I ask that you come to the
podium, clearly state your name, spell your name, and state
the name of the organization that you represent.
The order of presentations of public statements
will be in the order in which the requests were received and
will be as follows. Lee Lemke, Len Eldridge -- I'm sorry.
Len Etheridge, Billy Yarbrough from the Georgia Mining
Association, Steve Minshall from the American Portland
Cement Alliance, Greg Frazier from Thieley (sic) Kaolin,
Pete Martinez from Texas Utilities Mining, Charles Machemehl
and Ken Stockton from the Georgia Crushed Stone Associates,
Dr. John Gibbs from Care-McGhee, Dewey McCabe from Oil Dry,
Maurice Gibson from A & M Products, and William Wolfe.
It is my intent that during this hearing, anyone
who wishes to speak will be given an opportunity to do so.
Anyone who has not previously requested to speak should
indicate their intentions to do so by signing a list of
speakers which is located at the far right of my table in
front of Roz Fontaine. Time will be allotted for all who
wish to speak after the scheduled speakers. The chair will
attempt to recognize all speakers in the order in which they
requested to speak. If necessary, however, the moderator
reserves the right to modify the order of presentation in
the interest of fairness.
Also, as the moderator, I may exercise discretion
to exclude irrelevant or unduly repetitious material. And
in order to clarify certain points the panel may ask
questions of the speaker.
All comments are important to the agency. MSHA
will accept written comment and other appropriate data on a
proposal from any interested party including those who will
not present an oral statement. Written comments may be
submitted to Roslyn Fontaine at the far right of the table
during this hearing or sent to Patricia Silvey, Director of
MSHA's Office of Standards, at the address listed in the
Public Hearing Notice. All written comments and data
submitted to MSHA will be included in the rulemaking record.
Should anyone desire to modify their comments or submit
additional comments following the hearing, the record will
remain open as stated in the Public Hearing Notice until
June 20, 1997, to allow for post-hearing comments and data.
If possible, the agency would appreciate receiving a copy of
your comments on computer disk and also tell us what
language you use to type in your comments.
The comments are essential in helping MSHA develop
the most appropriate rule that fosters safety and health in
our nation's minds. We appreciate the constructive
criticism and the hard work and careful thought which your
comments represent. Personally and on behalf of the
Assistant Secretary, J. Davitt McAteer, I would like to take
this opportunity to express our appreciation to each of you
for your being here today and for your input. We look
forward to your continued participation in the Agency's
rulemaking activity.
Before we begin with our first speaker, I would
remind you to sign the attendance sheet that we have on the
table whether you choose to speak or not. The attendance
sheet is back by the water. We look forward -- I'm sorry.
Also, once again, if your name does not appear on our list
of speakers you will still have an opportunity to present
your testimony.
For each speaker as you begin your statement
please state your name and organization and spell your last
name for the reporter. If you have copies of your prepared
testimony please present your copies to the Agency panel as
you begin.
Our first speaker of the morning is Mr. Lee
Lemke.
MR. LEMKE: I guess you can hear me. Good
morning. My name is Lee Lemke. It's spelled L-e-m-k-e. We
welcome y'all to Georgia and wish we had better weather.
I'm the Executive Vice President with the Georgia Mining
Association. We are very pleased that you would take the --
take this time to come to Atlanta and let us make the
following comments on MSHA's Proposed Noise Exposure
Standard.
The Georgia Mining Association is a non-profit
trade association representing some 200 mining and associate
members. Actually we have about 49 mining companies that we
represent and about 160 other associate member companies
that have people that work directly in the mining industry
providing goods and services as well as contract labor. Our
association has approximately represents about eight --
eight thousand actual miners and probably an extra two to
three thousand people that work in the mining -- directly in
the mining industry. Our members produce products which
include crushed and dimensional stone, kaolin, barite, mica,
feldspar, mulite and sand. We are actually the second
largest mining state in terms of industrial minerals. It's
a production value of about 1.7 billion dollars a year.
The Georgia Mining Association supports MSHA's
efforts in developing a comprehensive noise exposure
standard. We have identified several items in the proposed
rule that we believe needs to be addressed and Len Etheridge
will make our comments to these. We ask MSHA give
consideration to these comments and to continue to focus on
performance and goal based rulemaking which we believe has
been the key element in the reduction of in -- indus --
injuries and illnesses in the mining industry.
I should mention, Billy Yarbrough is our chairman
of our safety committee. He will speak following Len. The
written comments we have. I do want to tell you we have a -- a variety of miners in Georgia in terms of mining
companies large and small. And we sent out a survey to ask
them how many had extensive hearing conservation programs
and generally we found that the large ones have already
instituted very extensive hearing conservation programs.
It's the small miners that we are very concerned about and
the cost to them, and Billy will address that. We are
concerned particularly for those ones but we all have a
large concern for the health and welfare of all of our
employees.
At this time I would like to have Len come forward
and give the rest of our comments.
MR. ETHERIDGE: Good Morning. My name is Len
Etheridge. That's spelled L-e-n and Etheridge,
E-t-h-e-r-i-d-g-e. And on behalf of the Georgia Mining
Association I am pleased to present the following summary of
GMA's comments of which you've just received.
While the Georgia Mining Association supports
MSHA's efforts in developing this comprehensive exposure
standard we have identified several items in the proposed
rule that we feel needs to be addressed. We ask that MSHA
give consideration to these comments and continue to focus
on performance or goal oriented rulemaking,which we do
believe has been a key element in MSHA's success in
contributing to prevent prevention of the injuries and
illness to miners.
The first topic I'd like to discuss is MSHA's
hierarchy of controls. The Georgia Mining Association
request that MSHA modify the section in your proposed rule
62.120 (c)(1) to the following language.
If a miner's noise exposure exceeds the PEL for
more than 30 days per year the operator shall, in addition
to taking the actions under paragraph (b) of this section,
use all feasible engineering and administrative controls to
reduce the miner's exposure to the PEL. Personal protective
equipment may be used to reduce the miners exposure to the
PEL for noise levels up to 100 dBA 8-hour time weighted
average.
We believe that MSHA should allow mine operators
the flexibility to use protective equipment up to 100 dBA 8-hour time weighted average in addition to the use of
engineering and administrative controls to reduce mine --
miners noise dose to below the PEL. This would be
consistent with OSHA's current policy which allows hearing
protection up to 100 dBA and MSHA's current policy in coal
mining.
GMA believes that properly selected personal
protective equipment that's used in conjunction with other
aspects of MSHA's Proposed Noise Standard. These a -- these
aspects include exposure monitoring, training, audiograms,
communication of results to employees, reporting of
threshold shifts to MSHA and MSHA's existing semi-annual
regulatory inspection program can be an effective control in
achieving the goal of protecting a miner's hearing. When
needed this option can be implemented in a very short period
of time as opposed to attempting to redesign a system which
is both a lengthy and costly process and one that may also
not be successful in reaching the desired noise levels.
MSHA should also allow personal protective
equipment as a solution for controlling exposures above 90
dBA 8-hour time weighted average without the requirement for
engineering controls for exposures for individuals when that
exposure is less than 30 days per year. This flexibility
will address maintenance operations and other non-routine
tasks and is also consistent with recent engineering and
administrative control requirements that OSHA has finalized
in their recent 6B rulemaking activities for cadmium,
formaldehyde, methylene chlorine.
By allowing these proposed change -- changes the
Georgia Mining Association believes that we can achieve the
desired goal of protecting miners' hearing while providing
the flexibility to miner operators to implement solutions
that work best at their individual mine site.
The second topic I'd like to discuss is
notification of noise exposure assessment results to
employees. In our proposed changes to 62.120 in section
(f)(2) are as follows. Whenever a miner's exposure is
determined to exceed the action level, according to exposure
evaluations conducted either by an operator or a
representative of the Secretary of Labor, and the miner has
not received notification of exposure at such level within
the last -- within the prior 12 months, the operator, shall
within 30 calendar days of receiving the final written
results of the evaluation notify the miner in writing of the
exposure determination and the corrective action being
taken. The operator shall maintain a copy of such miner
notification or a list on which the relevant information
about a miner's notice is recorded, for the duration of the
affected miner's exposure above the action level and for 6
months after.
If MSHA establishes these communication
requirements using the action level as a trigger, then
specifying the PEL, the dual hearing protection level, and
the ceiling level in the proposed rule is redundant and does
not need to be listed in the standard. While specific
actions will be taken -- that will be taken will differ
depending on the specific noise level, the same basic
communication requirement will exist for all situations
above the action level.
Georgia Mining Association believes that
notification should be required within 30 days as opposed to
15 calendar days as well. This added flexibility will allow
mine operators to handle communication results to employees
who take extended vacations, personal business, or sick
leave. This time does not affect an operator's response
requirement to address a noise exposure issue through the
use of hearing protection equipment, engineering,
administrative controls, or training. In addition, this
time period for communicating the results should begin from
the time the mine operator receives the final results of the
evaluation in writing and not from the date of the
evaluation. Many mine operators, especially small sites,
may use consultants to conduct noise exposure assessments
and the final results may not be available on the day of
conducting the noise exposure measurement.
Finally, GMA believes that the storage of the
industrial hygiene and employee notification records at the
mine site will be a significant burden to some member
companies. The Georgia Mining Association request that mine
operators be allowed to provide this information to MSHA in
a timely manner during regulatory inspections but not be
required to maintain those specific records at the mine
site.
Our next comment focuses on the requirement to
maintain records at the mine site for training requirements
as identified in 62.130(b). The Georgia Mine Association
recommends striking this part of the requirement since we
believe, again, that storage of these training records at
the mine site may create a significant burden to some member
companies. Again, GMA requests that mine operators be
allowed to provide this information to MSHA in a timely
manner during regulatory inspections but not be required to
maintain those records at the mine site.
The next item is audiometric exams. The use of
hearing protection for the 14 hour quiet period for
baseline. The proposed rule in 62.140 requires that -- will
not allow hearing protection to be used as a substitute for
the quiet period prior to the initial baseline examination
and the Georgia Mining Association believes that this is not
practical in all cases to be able to conduct baseline
audiograms without this requirement to use hearing
protection prior to that audiogram. We recommend that MSHA
strike that statement in 62.140.
Our next item audiometric exams and notification
of results. Georgia Mining Association supports the
notification and communication of those audio -- audiometric
exam results to miners. However, we recommend that MSHA
allow this requirement -- this notification requirement to
be completed within 30 calendar days as opposed to 10
working days as specified in 62.190. The added flexibility,
as I mentioned before, will allow mine operators to handle
communication of employees who take extended vacations,
personal business, or sick leave.
In the area of reportable hearing loss, the
Georgia Mining Association supports reporting of hearing
loss information to MSHA. However, GMA believes it should
be considered a report of a standard threshold shift rather
than a diagnosis of an occupational hearing loss. Although
the rule allows for review by a physician or audiologist,
the assumption by MSHA is that if the physician or audio --
audiologist can not make the determination that the STS,
Standard Threshold Shift, was not work related, then it must
be work related and must be reported. While the physician
or audiologist may not be able to determine that the STS was
non-work related, they also may not be able to determine
that it was. Therefore we -- GMA recommends that reporting
of a Standard Threshold Shift -- reporting that a Standard
Threshold Shift has occurred will provide MSHA with the
appropriate oversight information without making those
initial judgements regarding the cause.
Finally, GMA supports miner's access to records as
identified in 62.200, which is, upon termination of a
miner's employment, the operator shall provide the miner,
without cost, a copy of the records that the operator is
required to maintain for that individual miner under this
point. GMA supports the miner's access to these records;
however, we recommend that this be provided upon written
request from an employee.
Although the Georgia Mining Association has
recommended several modifications to sections of the
proposed standards that I've just listed, GMA supports the
following sections of MSHA's noise proposed standards.
Regarding the exposure monitoring requirements
where the operator shall establish a system of monitoring
which effectively evaluates each miner's exposure, the
Georgia Mining Association believes that this is -- this
establishes the kind of performance oriented rule that we
believe has been a success in reducing injuries and
illnesses for miners. In addition to the exposure
monitoring requirements, GMA also supports MSHA's use of the
action level and its requirements and the 5dB exchange rate.
In summary, the Georgia Mining Association has
been pleased to provide these comments to MSHA on your
Proposed Noise Exposure Standard and we look forward to
continuing our relationship with MSHA to assure that we can
develop goal oriented rules that can protect our miners
while providing the flexibility of mine operators to develop
solutions that work at their specific mine site.
With that I'll close and say thank you.
MR. VALOSKI: Any questions?
MS. WESDOCK: You said at the beginning of your
testimony I think Mr. Lemke indicated that Georgia Mining
Association had conducted a survey. Was the survey that was
conducted regarding the cost for small mines to comply with
the hearing conservation program?
MR. ETHERIDGE: Yes, and I think we'll have the
following speaker that's going to talk a little bit about
that.
MS. WESDOCK: Okay, did you ask them what it would
cost?
MR. ETHERIDGE: I may have to defer --
MR. LEMKE: Yes, we asked them what they thought
it would cost, how many had an active program and the
majority of people that were below, say, 100 employees did
not have active programs. Their -- their initiation
basically was having MSHA inspectors come out and do the
testing, checking equipment and things like that. They did
not have an ongoing hearing conservation program also. And
so the cost varied considerably, I mean, for a small miner
you know that had costs -- let's say 15 people the cost
would be close to, you know, 10 to 15 -- 10 to 15 thousand
dollars for that company to implement. So, there were wide
variances of what they thought because you must remember
that -- that many of these companies are going to have to go
out and have a mobile unit come in and the cost of that is
incrementally much higher for a small miner and --
substantially higher.
MS. WESDOCK: Would you be able to maybe
supplement that information as far as the cost comment?
MR. LEMKE: Well, I'd like to but -- but I'll be
very candid about it. I didn't bring that information and I
didn't tabulate it because it was very speculative. It was
asking these companies what they -- what they thought that
they were going to incur but I have no hard -- I felt like a
lot of theirs were estimates of what -- what they thought it
was going to cost them to implement the program.
MS. WESDOCK: Thank you.
MR. VALOSKI: Mr. Etheridge you said 30 days if
you have less than 30 days exposure to noise above the PEL
then you can use HPDs and if you exceed 30 days then you
have, like, the OSHA policy.
MR. ETHERIDGE: Correct.
MR. VALOSKI: How would MSHA as a regulatory
agency determine those 30 days? We don't have inspectors at
a mine for 30 days.
MR. ETHERIDGE: That as with the OSHA standard
would be a burden that the operator would have to show. So
that is one that we would have to show that based on our
work records or our exposure monitoring. As we mentioned,
the operator has the flexibility in the exposure monitoring
standard, piece of the standard that you provide it to
conduct that type of monitoring program which eval -- which
effectively evaluates all their employees. So that would be
-- that would fall back on monitoring records and work
records of the individual operator.
MR. THAXTON: Okay. To follow up on that too, Mr.
Etheridge, would you anticipate then that if you came across
a miner that was exposed to greater than 90 then the mine
operator would have to take on the burden of collecting a
lot more monitoring results in order to substantiate either
an exposure of 30 days or less?
MR. ETHERIDGE: It probably would depend on the
specific job. The situations I'm thinking -- I have
referred to are short term kinds of maintenance activities
many of which can be -- which exposure can be defined based
on site-wide noise surveys as well as work records. So
again the -- the -- the efforts to show that 30 days will
fall upon the -- the operator and that's -- that is still
consistent with what OSHA uses in their -- in their 30 day
rule.
MR. THAXTON: In relation to that though you were
indicating concern for contract type workers that may be
there less than 30 days. If you have contractors that are
actually on site for only five days, they move on to another
site --
MR. ETHERIDGE: No, I --
MR. THAXTON: -- you --
MR. ETHERIDGE: -- excuse me, I'm sorry. I was
more thinking about a miner's employees themselves in
addition -- as well as contractors. Especially with
maintenance kind of activities. You can have a mechanic
that has responsibilities for an entire plant but only part
of a plant or only certain number of tasks that that person
may do involving the noisy part of the operation. That
would be part of that exposure assessment that we have to do
up front to ensure that that employee's exposure is less
than 30 days per year. So, that is -- that is for mine
operator employees as well as -- it would apply as well as
contract.
MR. THAXTON: Thank you.
MR. VALOSKI: I believe we've got no further
questions of you, Mr. Etheridge.
MR. ETHERIDGE: Thank you.
MR. YARBROUGH: Good Morning. I'm Bill Yarbrough.
That's Y-a-r-b-r-o-u-g-h. I am Director of Safety and
Health for Dry Branch Kaolin Company. I'll be addressing
you this morning as the Chairman of the Safety and Health
Committee for the Georgia Mining Association.
I'd like to address two issues, the first of which
is cost of compliance. We touched on that briefly and I
believe Lee made it very clear that some of the data that we
have accumulated is sketchy at best, so I'll get on to some
other issues that I was going to -- going to talk about.
We believe MSHA has understated the potential cost
to industry of this standard. We are proposing that there
be a gradual phase in over an extending period of time of
this standard. This will allow us to approach suppliers of
processing equipment to reduce decibel levels at the source,
which is our equipment. We believe this is absolutely
critical as part of the solution to this problem.
As all of you know, in the mining industry, a lot
of our equipment and buildings are older equipment and older
buildings. At the time of design they were not conscious of
or cared at all about decibel levels, to be honest with you.
Today it is -- it is quite a -- a relevant issue in the --
in the mining industry. The problem we have is that a lot
of this equipment is older and we're going to have to deal
with that issue at the point or the source of the noise
which is -- is the equipment. So hopefully if we can have
time to address the problem at the source, which is the
supplies of this equipment, I think we can really get a -- a
relevant lowering of noise levels, but I think this is
critical to all the mining industry. As I said earlier this
basically would just take time.
The second issue that I would like to address is
MSHA Funding of the State Grants Program. Currently, MSHA
has about 5.6 million dollars allocated to this program.
Under the Act MSHA has the right to ask for about 10 million
dollars. We propose that additional funds be used by the
State Grants Program to work with mining industry in
identifying problem noise areas at the mine sites and
working with the producers or the mining companies to
develop reasonable solutions to these problems. This is to
include hearing conservation programs.
As was mentioned earlier, a lot of the companies
in the mining industry are smaller companies. We, in the
larger companies, have these programs in place for the most
part. The smaller companies, however, do not. And they do
not have the resources to do this. We believe that the
additional funds that could be available to MSHA through the
State's Grant Program are critical to the medium and smaller
size companies in trying to address this problem. We
believe that -- that you could incorporate training
sessions, problem targeting sessions all into one and the
State's Grant Program could be used more as a problem
solving group when it comes to the noise standard than --
than just simply a training arm.
I have tried to keep my comments as brief as I
could because I know this morning -- it's going to be a long
morning, so I will leave you with that.
MR. VALOSKI: Thank you. I'd like to make a
comment. You're saying state grants to help, you know tech
support is willing and available to go to mines and help
them with noise control pieces of equipment.
MR. YARBROUGH: That's right. They are. They
would be willing, they are willing, in Georgia. I know
that.
MR. VALOSKI: Okay.
MR. CUSTER: Sir, what length of a phase-in period
would the Association have in mind?
MR. YARBROUGH: We're asking for three to five
years.
MR. CUSTER: Are you aware that essentially the
regulation in regard to engineering and administrative
controls really has not changed -- the proposal does not
change the current metal, non-metal regulation.
MR. YARBROUGH: We understand that.
MR. CUSTER: And you feel that there has not been
much success in enticing manufacturers to -- to provide for
treating equipment for noise generation.
MR. YARBROUGH: To date, I do not believe there
has. In fact, I have had some conversations with some MSHA
-- some groups from MSHA and have proposed that industry and
MSHA join together to act as a spear against -- against our
suppliers, that is, we need a common front here. We need
MSHA to back up what we are going to our suppliers with. If
we request noise decibel of -- if we request decibel
lowerings to certain levels, our equipment suppliers
certainly will require some type of documentation from our
federal regulatory group. MSHA is, by the comments made to
me, more than agreeable to do that. This however is going
to take a period of time. It's not something we can do
overnight. I hope that -- that if we can work well with
MSHA through the -- through the coming years that we can
achieve this at the source, which is the machinery itself.
And I think that's critical of what's trying to be done
here.
MR. VALOSKI: Since there's no more questions,
thank you very much, Mr. Yarbrough.
Our next speaker will be Mr. Steve Minshall
representing the American Portland Cement Alliance.
MR. MINSHALL: Good morning. I guess it's a good
thing he was brief because I guess I probably won't be quite
as brief.
(Laughter)
MR. MINSHALL: I'm Steve Minshall. I'm the
Corporate Health and Safety Manager for Ash Grove Cement
Company and I'm pleased to be here today --
MR. VALOSKI: Mr. Minshall, could you spell your
name for the court reporter?
MR. MINSHALL; I'm sorry, it's M-i-n-s-h-a-l-l.
First name is Steve. Is that all you need?
MR. VALOSKI: Yes, thank you.
MR. MINSHALL: I'm pleased to be here today on
behalf of the American Portland Cement Alliance, which
represents virtually all of the domestic cement
manufacturing industry. We have a written statement but we
found an error in it that they wanted to make a change in
which we'll submit in Washington, I guess, on the 30th so,
y'all will receive a copy of that. I do have copies of my
oral statement if you care to have that.
MR. VALOSKI: Yes, we would and would you please
give it to Roz Fontaine at the far right-hand of the table.
MR. MINSHALL: Sure. Are you sure you don't want
more I've got a lot of paper --
(Laughter)
MR. VALOSKI: Give them to us, we'll take them.
That will save us from duplicating some of these, thank you.
MR. MINSHALL: Anybody else? If nothing else,
it'll help put you to sleep.
So, we're going to submit our written statement,
which will be essentially the same as the one that I'm going
to speak to today at the meeting, in Washington on the 30th.
I'd like to state at the beginning that the health
and safety of our employees are of the utmost concern for
Ash Grove Cement and that I speak for all APCA member
companies in saying that conserving the hearing of our
workers is an important issue for all of us. In fact, many
of us have implemented hearing conservation programs years
ago, modeled after the OSHA Hearing Conservation Amendment.
We believe it's important to have commonality
between the OSHA noise standard and MSHA's proposed rule, in
large part because the OSHA rule does protect the hearing of
employees, and because the industry's operations are
regulated by both agencies. Our specific comments on the
proposed rule are -- are as follows:
On the 5dB exchange rate. First, the cement
industry supports retaining the 5-dB exchange rate. MSHA
has stated that it might be infeasible at this time to
change to the 3 dB exchange rate and we agree. The rest of
American industry is under the 5 dB exchange rate and
current engineering controls are geared to meet that
standard. It is impractical to expect the mining industry
to jump from essentially no noise standard to one that would
exceed what other American companies are following.
There was a request for a discussion about
difficult noise control areas and that's what these
following comments will address. MSHA requested comments on
areas within our operations in which noise control would be
difficult. A listing in the cement industry would include:
ball mills, crushers, rock screening, material unloading,
and compressor and blower areas. It is important to note
that rarely are employees permanently stationed in high
noise areas but experienced transient exposures -- transient
exposure during execution of their work assignments.
Various noise control efforts have been attempted
in these areas, many have had costs that fail to justify the
results. For example, rubber liners in raw mills have been
used. They produce some noise reduction but still noise
levels are far above the permissible exposure limit.
Installation of rubber liners translates into hundreds of
thousands of dollars in lost production and material costs.
Alternative methods of milling raw feed may be quieter but
constitute a major equipment replacement and may not be
technically or economically feasible for some plants.
Equipment manufacturers have estimated that replacement
mills could cost from 3 to 4 million on the low end to 9 to
10 million on the high end. And that's the cost per mill.
There are up to three raw mills per plant. Expenditures of
this magnitude are just simply not justified for noise
reduction alone.
Crushers, rock screens and material unloading
stations are also areas that do not lend themselves well to
engineering noise controls. The nature of these tasks is
inherently noisy; rocks being dumped and striking against
metal, metal equipment is striking the rock to crush it or
screen it, and powerful, noisy motors are used to drive the
machinery. In many instances, control booths are feasible
and do significantly reduce operator noise exposure. Other
tasks, however, required more worker mobility and potential
exposure to these noise sources. Enclosures and noise
vamping materials are either not feasible or will produce
minimal effect at high cost; the potential for over-exposure
therefore remains.
Compressor and blower areas in existing plants are
also difficult areas in which to control noise. Often these
are high energy, highly congested areas with minimal free
space for sound enclosures. Where enclosures are possible,
controlling heat build up becomes a major issue in order to
prevent equipment damage.
Often engineering controls in the cement industry,
where they are feasible, are very expensive for the amount
of noise reduction they provide. The cement industry
strongly believes in the viability of using personal hearing
protection devices to protect the hearing of its employees
working in these areas.
I'd like to talk a little bit about administrative
controls. In the hierarchy of controls, administrative
controls are likely to be ineffective. Posting signs
stating "High Noise: Remain in the area only for X amount of
time" has been of limited effectiveness. Many cement plant
employees, for example maintenance workers, are highly
mobile, moving from one area to another as their jobs
require. It would be next to impossible for an employee or
a supervisor to accurately assess and respond to the length
of time an employee had been in a noisy area, especially
since employees can work in several, non-contiguous noisy
areas.
Administrative controls also have the potential to
disrupt normal work flow. Some mine operators have reported
that they have tried administrative controls, and given the
opportunity, would not choose to do so again. Changing
workers in the middle of performing a task presented
logistical problems and miscommunication about the status
and requirements of the job. For people concerned about
employee safety, this presents potentially multiple
opportunities for something to go wrong, an injury to occur
or for job quality to suffer.
Another practical consideration about
administrative controls is how to deal with work rules by
which workers are not allowed to perform duties other than
those which fall under their official job title. In other
words, if an unprotected laborer is assigned to clean up in
a noisy area, and no other laborers are available when that
employee's noise exposure time has expired, a mechanic or
repairman often cannot be assigned to complete the job.
Such a situation often -- certainly limits the benefits of
administrative controls.
Again, the point is that the use of personal
hearing protection often will be the more effective and
efficient means of protecting employees' hearing ability.
Next section is on discerning miners in the
hearing conservation program. The Agency requested comment
on how to discern which miners are required to use hearing
protection or take hearing tests. The cement industry
believes that MSHA should request such determinations on a
case-by-case basis. Such requests should be based on
accurate noise monitoring data collected by an inspector.
If an inspector cannot document exposure at or above the
action level at the miner's work station, mine operators
should not be required to produce information regarding
incumbent miner's status in the program.
Paperwork and administrative requirements as
compared to the OSHA noise standard, next section. Posting
of Administrative Control Procedures at 62.120(c)(1).
Individual mine operators need to be allowed to determine
how to communicate administrative control procedures to
employees. The OSHA noise standard does not have a posting
requirement for administrative controls; therefore, the
posting requirement should be deleted from MSHA's proposed
rule.
Employee notification of overexposure at the
permissible exposure limit, the action level, dual hearing
protection exposure level, ceiling level at 62.120(f)(2).
This section of the proposed rule requires written
notification to miners for every conceivable condition of
noise overexposure and establishes a 15 day time limit to
make the notification. The corresponding section in 29 CFR
1910.95(e) simply requires: The employer shall notify each
employee exposed at or above an 8-hour time weighted average
of 85 decibels of the results of the monitoring.
The APCA believes MSHA's time limitations and
written notification requirements are excessive and will not
enhance the hearing protection of miners. The APCA believes
that MSHA should delete its time limitations and written
notification requirements from the proposed standard.
Written actions being taken to correct
overexposure situations at 62.120(f)(2). Again, the OSHA
noise standard has no requirement for written notification
of corrective actions. The cement industry believes it
should be left to the mine operator to determine how to
communicate such information.
Training certification at 62.130(b). The
corresponding OSHA Standard in 29 CFR 1910.95(k) does not
have a training certification requirement. The cement
industry does not see how such a requirement enhances the
safety and health of miners, and believes it boils down to
an enforcement tool. The cement industry sees this as an
unnecessary burden and believes the training certification
requirement should be removed from the rule.
Additionally, it would appear more logical for
MSHA to place the initial and annual training requirements,
now found in 62.120(b)(1), in paragraph 62.130.
Audiogram certification at 62.150(c)(1-5). The
cement industry believes that it is unnecessary to certify
each individual audiogram, but believes that a statement by
the physician, audiologist or qualified technician that all
testing was done in accordance with the requirement of
62.150(a) would be sufficient.
Miner notification of results at 62.190. The OSHA
noise standard requires informing employees within 21 days
after the determination of a Standard Threshold Shift.
That's at 29 CFR 1910.95(g)(8)(i). The proposed MSHA
requirements for reporting all results within ten days is
unnecessarily stringent. The cement industry believes the
mine operator should only be required to communicate results
indicating STS or reportable loss and the time frame ought
to be extended to 21 days.
Employee access to records at 62.200. The cement
industry strongly opposes MSHA's proposal in 62.200(b) to
provide miners with copies of all records upon termination
of the miner. No precedent exists within OSHA standards
1910.20, Access to Records, and 1910.95, Occupational Noise
Exposure, for this requirement. This requirement is
unnecessary and places an undue burden on the employer. The
requirement in 62.200(a) adequately addresses this issue.
The cement industry requests deletion of 62.200(b) in its
entirety.
Employees and employers tend to view hearing test
results as confidential medical records and often object to
the review of these records by others without their prior
written permission. The industry encourages MSHA to adopt
wording similar to that found in 29 CFR 1910.20(e)(3)(ii),
which states, "Whenever OSHA seeks access to personally
identifiable employee medical information by presenting to
the employer a written access order pursuant to 29 CFR
1913.10(d), the employer shall prominently post a copy of
the written access order and its accompanying cover letter
for at least 15 working days." The cement industry believes
this language will afford employers some protection against
claims of releasing confidential medical information to
government agencies and, by posting access orders, employees
shall be informed when the federal government has chosen to
view private medical files.
Definition of the hearing protector. The cement
industry accepts MSHA's definition of a hearing protector
and asks that the Agency include the noise reduction rating,
or NRR, in the remainder of the definition as an example of
a scientifically accepted indicator of noise reduction
value.
Providing multiple types of hearing protectors.
The cement industry does not endorse the requirement to use
or exclude any specific types of hearing protectors for
employees with hearing impairment. Such requirements would
overly complicate the hearing conservation program and make
it less likely that employees will use appropriate hearing
protection. We believe employees are more likely to use
hearing protectors that are readily available to them and
would not be inclined to go find a specific type if it were
not available in the immediate work area. In such a case,
the miner might choose to work unprotected or to use a so-called unapproved type; neither choice would be acceptable
to the employer or to MSHA. As MSHA has stated, factors of
comfort, fit and consistent use are also important in
protecting a miner from a noise induced hearing loss.
Hearing protector effectiveness, derating and
allowance for protector attenuation. MSHA requested
comments on a scientific and practical means for determining
hearing protector effectiveness under mining conditions.
The cement industry is not well-suited to making this
determination but the recent literature, notably the
January, 1997 issue of "Applied Occupational and
Environmental Hygiene," has articles on such methods.
However, the cement industry does believe that
MSHA should take the same approach OSHA has taken in
determining hearing protector attenuation. By that method,
OSHA subtracts 7 dB from the hearing protector's noise
reduction rating and then divides the result by 2. If the
resulting number is then subtracted from the 8-weighted time
weighted average noise reading and indicates a result less
than the permissible exposure limit, the employer is not
cited for an overexposure. MSHA should use this method and
make allowance for attenuating the noise exposure below the
PEL.
The industry believes the allowance of a hearing
protector if the noise is attenuated below 90 dBA is a key
issue. Without this allowance, and with the wording in the
proposed standard, MSHA has effectively lowered the action
level to 80 dBA for any miner who is required to wear
hearing protection. See paragraph 62.125(b).
This requirement goes far beyond the comparable
OSHA standard, and the industry objects strongly to it.
Paragraph 62.125(b) should be omitted.
The cement industry further requests that MSHA
restate 62.120(a)(3)(i) to read as follows. I don't know
how you state those little periods in front of the quote,
but "...be adjusted on account of the use of any authorized
hearing protector that attenuates the noise level at the ear
to less than 90 dBA."
The industry believes that MSHA is imposing much
stricter requirements on the mining industry than on general
industry by requiring hearing protection to be worn when
exposures are as low as 80 dBA. The industry believes that
MSHA has not sufficiently proven the necessity or cost
effectiveness of such a requirement. MSHA should
incorporate OSHA's standard and require hearing protectors
to attenuate employee exposure to an 8-hour time-weighted
average of 85 dBA, or below, for employees who have
experienced a Standard Threshold Shift. If no STS is
present, attenuation should only be required to be 90 dBA or
below.
Baseline audiogram definition. Regarding the
definition of baseline audiogram in 62.110, the cement
industry requests that MSHA clarify that these baseline
tests are to be established after the effective date of the
regulation. To that end, the cement industry suggests the
following wording. "The audiogram pursuant to 62.140, and
after the effective date of this regulation, against which
subsequent audiograms are compared to determine the extent
of hearing loss", et cetera.
Ceiling level. The proposed standard establishes
a ceiling level of 115 dBA. However, the proposal is
unclear whether this is an instantaneous level, or as Table
62-1 suggests, an exposure level allowed for 15 minutes.
Because loud coughing, whistling, or yelling into a
microphone as well as striking it against a hard surface can
produce a peak reading of greater than or equal to 115 dBA,
false indications of exposure could be provided that could
result in citations to employers. Therefore, the industry
believes that peak measurements from noise dosimeters should
not be used to determine compliance with this proposed rule.
MSHA should more clearly define the proposed
ceiling level and apply a reasonable time limit of 15
minutes. The cement industry believes that a ceiling level
is impractical if it makes no allowance for duration of
exposure, the dose, or for impact or impulsive noise.
Notably, again OSHA does not have a similar ceiling level
requirement in 29 CFR 1910.95.
Operator exposure evaluation. Section 62.120(f)
seems to indicate that each employee must have his or her
exposure monitored. The corresponding section in the OSHA
standard at 29 CFR 1910.95(d)(1) states: "The sampling
strategy shall be designed to identify employees for
inclusion in the hearing conservation program and to enable
the proper selection of hearing protectors."
The cement industry believes the OSHA standard
makes an allowance for not having to sample each employee.
Accordingly, the cement industry believes that a mine
operator should conduct representative sampling to determine
which employee should be in the hearing conservation program
without having to sample each employee. Further, the
industry believes that requiring noise monitoring on every
employee would be unnecessary, time consuming and costly.
Clearly, there are some employees not potentially exposed to
high noise levels.
The cement industry encourages MSHA to adopt
wording similar to that found in 29 CFR 1910.95(d)(1).
14-Hour quiet period. In 62.140(b)(2) MSHA
disallows the use of hearing protection to help achieve the
14-hour quiet period prior to the baseline audiogram. This
directly contradicts the OSHA standard in 29 CFR
1910.95(g)(5)(iii), which states, "Hearing protectors may be
used as a substitute for the requirement that baseline
audiograms be preceded by 14 hours without exposure to
workplace noise."
We believe that MSHA should allow the use of
hearing protectors to achieve this quiet period. Without
this option, the time to conduct the baseline tests will
necessarily have to be extended over several days. Because
many locations use mobile test vans, this will at least
double or even triple the cost of doing the test and will
also complicate the process of scheduling with the outside
vendor. Therefore, the cement industry urges MSHA to
restate 62.140(b)(2) as follows, "Authorized hearing
protectors may be used as a substitute for this quiet
period."
And now to my summary. The Occupational Safety
and Health Administration, OSHA, has had a noise exposure
standard in effect for over a decade. This standard has
been a guide to cement companies who voluntarily established
hearing conservation programs. OSHA's noise rule has been
effective in protecting the hearing of American workers.
The cement industry believes the proposed MSHA standard
should more closely mirror the OSHA standard and not impose
stricter standards than apply to general industry.
The use of personal hearing protection devices is
an issue of particular concern to the cement industry. We
firmly believe that no hearing conservation program can be
effective without the continued use of hearing protectors.
Retrofitted engineering controls that cannot reduce
equipment noise levels below the permissible exposure limit
and unmanageable administrative controls will never replace
the need for hearing protectors. If improvements in hearing
protection devices are needed, then safety equipment
manufactures should pursue those improvements.
One of the major determinants of the success of a
hearing conservation program is the prevention of Standard
Threshold Shifts. If employers can demonstrate they are
preventing or eliminating STS's and/or that a noise-induced
a permanent -- noise-induced permanent threshold shifts are
not occurring, they should not be required to make expensive
changes to equipment or procedures that may have little or
no impact on the success of the program.
The cement industry strongly supports many
measures that will protect the hearing of miners. Such
measures include training, noise monitoring, audiometric
testing, the application of economically feasible
engineering controls, and the use of personal hearing
protection devices. Such measures do not include
unnecessary paperwork, administrative controls that merely
increase operating costs, and regulations that increase the
likelihood of citations and penalties without improving the
industry's ability to protect the hearing of the workforce.
In closing, I would like to express my
appreciation for the opportunity to express the view of the
American Portland Cement Alliance on this important issue.
I would be happy to answer any questions you might have.
MR. VALOSKI: On several places you stated a
authorized hearing protector. What would that be?
MR. MINSHALL: One that meets the definition of a
hearing protector as defined by the proposed rule.
MR. VALOSKI: Thank you.
MS. PILATE: I only have a few questions. How
many companies are in the APCA?
MR. MINSHALL: I don't know if I can tell you the
number of companies. There are approximately 110 plants.
MS. PILATE: And how many of them have voluntary
HCP programs?
MR. MINSHALL: How many of them have what?
MS. PILATE: Have HCP?
MR. MINSHALL: I don't have a number of how many
have a voluntary program. Our company does, I know numerous
of them do.
MS. PILATE: On page two of your comments you
spoke of the cost of the rubber liners for engineering. You
estimated that would be in the hundreds of thousands of
dollars in lost production and material costs.
MR. MINSHALL: Right.
MS. PILATE: How much of that hundreds of
thousands of dollars is lost production, what percentage?
MR. MINSHALL: I don't know how much we make per
day, but it's approximately a 10 day outage. If I knew the
figure for what we were making profit-wise over 10 days I
could provide that figure, but I don't have the figure.
MS. PILATE: Do you know exactly -- hundreds of
thousands of dollars is a little unspecific. Do you know
about how much?
MR. MINSHALL: I think the estimate was between
300 and 500 thousand dollars.
MS. PILATE: And for what size plant is that?
MR. MINSHALL: That's for a plant of 100 to 150
employees.
MR. VALOSKI: Next?
MR. THAXTON: Mr. Minshall --
MR. MINSHALL: Yes.
MR. THAXTON: -- let's go back to your page two
and start at the beginning.
MR. MINSHALL: Okay.
MR. THAXTON: The 5 dB exchange rate, you indicate
here that it's difficult for the industry to accept going
from essentially no standard going to one which would exceed
other requirements. Do you not already comply with the
current MSHA standard of 90 dB with the 5 dB exchange rate?
MR. MINSHALL: To the extent that it's feasible I
think that all companies attempt to comply with that 90 dBA
standard. I think what I'm referring to there is the
additional costs that are associated with -- with the -- if
you lowered the dBA -- the exchange rate, other costs that
we don't particularly talk about -- and those would be like
workers' compensation costs and things like that -- that
since people are not required to do audiometric testing now
formally you can increase the cost significantly of
implementing hearing conservation program, at least with the
initial cost of workers' compensation claims.
MR. THAXTON: The requirement for audiograms is
not a requirement under the metal, non-metal regulations but
it is part of the coal regulations currently for certain
instances. So the cost that you're relating to are only
those cost then related to the cement industry?
MR. MINSHALL: Yes.
MR. THAXTON: Can you provide us with information
as related to what type of cost you think this is going to
generate?
MR. MINSHALL: I'd have to do a little more
homework in order to provide you the actual cost values. If
that's what you want though -- It would take additional
time. We were kind of under the gun and couldn't produce
all the numbers that we wanted to produce here.
MR. THAXTON: Any numbers that you could provide
to us though by the closing date would be appreciated.
MR. MINSHALL: Okay.
MR. THAXTON: Your next item was your reference
to, on your page 6, discerning miners in the hearing
conservation program. You indicate that there should be no
requirement to let MSHA inspection people know who is in the
program if MSHA could not show an overexposure. What is the
purpose of not allowing inspection personnel to assess your
compliance with the regulation in relation to putting people
in a hearing conservation program when appropriate?
MR. MINSHALL: I guess we were thinking that part
of the burden there rests on the MSHA inspector to show that
there is a need to see the records. Our experience has been
you show records to MSHA inspectors and from that point you
have no idea how the records are going to be used for you or
more likely against you. I guess this is our attempt to not
give you anything more than we absolutely have to.
MR. THAXTON: Do you not agree though as the
enforcement agency that we are there to discern whether you
are in fact complying with the requirements of the regs
which includes if you've reduced the exposure to some people
by including them in a hearing conservation program that we
should be able to follow up on that to discern -- to
determine that that is being complied with in the regs?
MR. MINSHALL: I think that you would have the
opportunity to discern that if you had conducted sampling
that showed that the employee was overexposed to noise and
at that point if your results showed that, then you would
have access to the information.
MR. THAXTON: Whether it's our survey or your
survey, should that make any difference?
MR. MINSHALL: Well, in a perfect world I guess it
wouldn't, but in a world where enforcement is the issue I
guess it -- it does make a difference.
MR. VALOSKI: Is that it?
MR. THAXTON: I have one more here. On your final
summary you were talking -- indicated that if we -- the only
thing that should be reported to MSHA were STS's.
MR. MINSHALL: For reportable loses.
MR. THAXTON: As a reportable loss. Do you have
data then that reflects on your agent -- on your industry
the amount of STS that you've seen from prior testing?
MR. MINSHALL: The industry hasn't collected the
data, no.
MR. THAXTON: So you have nothing to base this on
as to what -- that your agent -- that your group has
essentially no STS's?
MR. MINSHALL: I don't think I'm saying that we
have no STS's -- I don't -- if I said that somewhere I --
MR. THAXTON: I may have misunderstood. I thought
-- the way you were indicating I thought you were saying
that because your industry basically does not have a lot of
STS's you should not be required to go through a lot of
engineering or other types of changes to the rules.
MR. MINSHALL: No, no. What I'm saying is, as
companies implement a hearing conservation program -- and
frankly I think for companies who don't have it will take a
while for them to get up to speed. It will take a while for
them to start enforcing more effectively the use of hearing
protection, trying engineering controls where feasible and
using administrative controls where those are appropriate to
start reducing STS's that some companies may have and you'll
see STS's for a while, while a company goes through the
start up phase. But after they start showing through the
efforts that -- that they're implementing that they don't
have any additional Standard Threshold Shifts or Standard
Threshold Shift isn't occurring in an area where there's a
noisy piece of equipment, why should a company be required
to do anything additional in that area?
MR. THAXTON: Okay, but then to show STS's you
agree then that we would have to require audiometric
examination?
MR. MINSHALL: Oh, we have no -- we don't have any
problem with that.
MR. THAXTON: Thanks.
MR. CUSTER: Sir, in the testimony you offered you
obviously like OSHA compared to what we've proposed and one
of the things you noted in your testimony is the derating
system that OSHA uses where they take the published NRR
values and subtract 7 divided by 2 to arrive at a figure.
You are aware that MSHA does not use that same derating
system currently. We merely take the published NRR value
and subtract 7 and that gives you your assumed attenuation.
Am I correct in assuming you would rather see the more
stringent derating system?
MR. MINSHALL: Actually, I don't think that we
would like to see the more stringent one, but I think that's
probably -- we were thinking that's what coming. The OSHA
standard doesn't actually say that they will cut that noise
reduction rating in half, that's a policy I guess that they
allow.
MR. CUSTER: That's a non-mandatory appendix.
MR. MINSHALL: Right. I think we were envisioning
that that's probably the way things were going to head.
MR. CUSTER: And we were smiling up here and some
of you folks probably wondered why. It had to do with our
records access and the records access order or request being
issued by an inspector. OSHA's act is -- is quit a bit
different than what the Mine Safety and Health
Administration operates under and essentially our inspectors
have the right of entry, obviously, without a search warrant
and our regulations generally -- generally reflect that in
the record keeping requirement areas. If any record is
required to be kept by the operator under the Mine Act or a
regulation is therefore a record that must be made available
to the authorized representative. Just to clarify that.
MR. MINSHALL: And I know you have. We are just
basically stating an opinion there that many people tend to
view those as personal medical records and just having
anybody having access to them is not necessarily what
everybody wants.
MR. CUSTER: Well, I think we would agree on the -- on the -- on the health records themselves, but I don't
think we would agree on the exposure record.
MR. MINSHALL: I don't know that we would
necessarily challenge that issue either.
MR. CUSTER: Thank you.
MR. VALOSKI: Our next speaker will be Mr. Greg
Frazier from Thiele Kaolin.
MR. FRAZIER: I'm glad you pronounced it Thiele
this time. I think the original pronunciation was Thieley
Kaolin Company, but the name is Greg Frazier.
MR. VALOSKI: Sorry, if I --
MR. FRAZIER: I'm just teasing.
MR. VALOSKI: In fact, I apologize to everybody
here if I mispronounce their names.
(Laughter)
MR. FRAZIER: My name is Greg Frazier,
F-r-a-z-i-e-r. I represent Thiele Kaoline Company and I
also represent the China Clay Producers Association and I
will try to be brief and I just want to address the issue a
little bit about the administration in the engineering part
of this proposed ruling.
In the company that I work for we are probably
just a little unique in the way that we do things. We
already have a hearing program established. We have a
mandatory physical policy within our company. Every
employee must take a physical every year, included in that
physical is an audiogram testing by a physician. I have
documentation back in my office, if anybody would like to
look at that any time, if we have an employee that has
suffered a hearing loss over the past 12 months of any
extent -- or whatsoever, really, I receive a written letter
from the physician of this employee's hearing loss, plus I
also get a phone call. Our procedure there would be and my
procedure is, I call in that employee and tell him what his
problem is and what the doctor has found and inform him that
he is required under all conditions that he wear hearing
protection while he is at work, no matter where he is
working.
Another thing I would like to address as far as
the administration part is concerned, I know this deals with
the eight hour exposure while on the job, but in most cases
in the kaolin industry, speaking for China Clay, the way the
plants are set up and the shifts are set up, there are very
rare instances where a person would be exposed to an area
that the limit is above what the regs call for for eight
hours. The reason I say that is, most of our people work
out of control rooms. Now, in the process of an eight hour
shift, they will be required two or three times to go out
and take a sample and check the equipment. I would
guesstimate that they would be in that environment
approximately three hours per shift, which is well into
eight hours. Now, in the kaolin industry, in the company
that I work for, the only people that would probably be
eight hours that would be in the mines are the people who
run the heavy equipment such as the dozers, the drag lines,
the Euclids and things of that nature. We have cabs on
those pieces of equipment. I'm not telling you that the
cabs supply sufficient noise reduction levels to stay under
the limit, but I can tell you that personally as manager of
safety for that company I have been out and run tests
myself, the dosimeter, along with MSHA inspectors, to see
what those levels are, and we have had some levels that was
above what the law calls for, but we would require all
personnel to wear hearing protection in that environment.
Now, if we are required to engineer that equipment
to where the cab itself supplies sufficient hearing
protection, just doing some rough figuring, now -- don't
quote me as being the exact figure -- it's going to cost my
company in the neighborhood of $200,000 to probably replace
cabs, or either maybe try to come up with a cheaper figure
by maybe insulating those cabs where it might work. Right
now, you know, that'd be a lot of money, but the China Clay
Producers Association, I can assure you, does everything
possible in their power to provide adequate health and
protection for their employees.
I will be glad for anybody any -- who would love
to come down and, you know, look at our safety programs to
see what we implement as far as taking care of our people.
I have a letter here from another gentleman, just
a letter I received by happen (sic), that said that they had
tried it in places where engineering had worked and it had
not worked. And I've got the same situation, and I'd like
to give you that scenario.
We have within our company a blower that blows
powder clay to a silo facility. It's called a Fuller-Kenyon
blower. If you are around that blower with no hearing
protection or no engineering has been done around that
blower, it's going to register 135 decibels, dBA. That's
what it is going to register. What I have done and what we
are doing at our facility -- and I know of other clay
companies that are doing the same thing -- ours that
registers that -- I had asked engineering and got approval
to put soundproof rooms around those blowers, which may be a
6 X 8 building that's well insulated, and when you shut the
door to that blower's room and you're standing outside, you
barely can hear the blower running, you are well under what
the regs call for. But we have had instances where we tried
to engineer and it didn't work. The point I want to make to
that is this. Those instances where it didn't work and we
put hearing protection on those employees also, it did work.
The PPE, personal protective equipment, did the job. As far
as we know -- the only thing we are assuming, I don't know
of any way you can actually measure the decibels when
somebody's got on hearing protection as to what it would be,
but I know in every location, which is two in our company,
we've got buildings with loud equipment in it that is above
the regs. We have hearing protection in that building at
all times. They do not have to go back to their shop or
they do not have to go back to their workplace where they
originate from to get it. It's there and we keep it there
and we require them to wear it. We've got, "Hearing
Protection Must Be Worn In This Area At All Times" posted
everywhere.
As I mentioned at the beginning, we also -- on
those mandatory physicals, I have had two in four years
since I have been manager of safety -- I have had two people
that I got letters from doctors back that said their hearing
loss had declined somewhat over the past year. I did a
thorough investigation of those people and come to find out
that both of those young men were playing in rock-and-roll
bands. Now, I'm not --
(Laughter)
MR. FRAZIER: Now, I'm not saying their hearing
loss came from that, but I am saying that it is going to be
hard to prove which one it did come from, whether it was
from loud music or whether it was from work. So, the point
I want to end up with is simply this. We provide hearing
protection where it is needed. In my four years it's always
done the job for us. You know how MSHA comes in and does
noise and dust level tests, well, I have not received -- in
four years I have not received back a test yet of an
employee that they did that on where the hearing was out of
limits and we had to address it with MSHA or pay any kind of
citation or things of that nature.
That's basically what I wanted to mention -- Let
me look at my notes and make sure.
And in this proposal -- and I'm not trying to
sound negative about this because I definitely want to
approach it from a positive manner, but we are dealing
strictly with hearing protection on this, but if we are
saying that hearing protection is just not enough, that's
what -- when I read the proposed regs that's what I got out
of it, that hearing protection is just not enough to do the
job -- well, then how do we know that safety glasses and
safety goggles and that respirators are doing the job? I
mean, it is kind of the same nature -- You know, MSHA tells
us, you must provide personal protection equipment for all
miners. We do that. I've had people wearing goggles to
still get something in their eye, you know. How do you
explain that? And I do -- I'm rather strict on my people
about making them wear personal protective equipment. If
they do not wear it they're called in and we take action on
them.
I do appreciate the concern that MSHA has shown
toward this. I appreciate the opportunity I've been given
just to make this brief comment, but I will say for a
company as large as Thiele Kaolin Company, you know, we're
going to stay within the regs, whatever you tell us to do.
Whatever the final promulgation is, whatever the final law
is, we're going to do it. I promise you that. It may cost
us some money, but my concern caters more to the smaller
company than it does the company the size I work for because
I've got 560 employees. A company with 25, 30, 40
employees, it's going to be rougher on them probably than it
would be me.
I thank you for the opportunity of making these
comments. If you have any questions, I'll try to answer
them for you.
MS. PILATE: You spoke of having a mandatory
annual physical which includes an audiogram?
MR. FRAZIER: Yes, ma'am.
MS. PILATE: Is that performed by a staff or
contracted audiologist?
MR. FRAZIER: It is performed by our panel of
physicians.
MS. PILATE: Is that an on-site physician?
MR. FRAZIER: Pardon? Is it on-site?
MS. PILATE: Yes.
MR. FRAZIER: No, ma'am, it's performed at the
doctor's office and I since -- since I first got this
proposal I called my panel of physicians and told them what
we was looking at, and they assured me that any changes that
they needed to make to stay in compliance to make the
audiogram test legal, they'd do anything we needed to do.
They said, if you want me to send staff members off and
certify them or something, I'll do it. If you want us to
set up something to come on site and do it, we'll do it.
You know, we're going to do whatever it takes.
But we do it every year, every employee. It's
mandatory. We do it every year.
MS. PILATE: For the panel of physician, does your
company pay per employee or do you pay a contracted fee?
MR. FRAZIER: Per employee.
MS. PILATE: And how much do you pay?
MR. FRAZIER: I think it is $150.
MS. PILATE: That's for the physical?
MR. FRAZIER: Yes, ma'am. The audiogram is part
of the physical.
MS. PILATE: You spoke of an estimate for
replacement of cabs as being $200,000. For how many cabs is
that?
MR. FRAZIER: Oh, let's see. Let me think. How
many mines have we got -- probably in the neighborhood of 12
to 15.
MS. PILATE: Is that $200,000 figure only the cost
of equipment or did you include the cost of loss production?
MR. FRAZIER: That's just equipment. That's not
including lost production.
MS. PILATE: Does your company have the annual
training program for hearing?
MR. FRAZIER: Oh, yes, ma'am.
MS. PILATE: How long on average do you send per
employee on hearing training?
MR. FRAZIER: Well, we include that in our annual
refresher training and that's an eight hour course and
probably two hours of that eight hour course is spent on
that.
MS. PILATE: You spoke of testing engineering
controls and some of them did not work. What were the
circumstances behind them not working and did you contact
the manufacturers of the engineering controls before you
actually installed them?
MR. FRAZIER: No, ma'am, I didn't call them before
I installed them because I didn't know then it wouldn't
work, but I did -- no, they have not -- I am referring to
the Elliott Mills, which you might know where that is, but
it is a very loud pulverizer, is what it is. And when they
are out of compliance, what I merely done was put ear muffs
over there and put ear protection must be worn in this
facility at all times, under no circumstances will you not
wear them, and we have not called the Elliott Mill Company
and told them that their machine running is above the level.
MR. VALOSKI: Thank you.
MR. FRAZIER: Thank you, sir.
MR. LEMKE: Could I make a follow-up comment to
Greg's --
MR. VALOSKI: He wants to make a comment first.
Go ahead.
MR. CUSTER: I think we need to make a
clarification and I think we have run into this in previous
hearings. The regulation is crafted, or we think it is, to
reduce miner's exposure. It's not necessarily to control
source noise at all times. Obviously you may have a source,
but if there is no exposure as was alluded to by the
previous speaker, then there is certainly no need to
control. I think we need to make that point clear.
Obviously in the case of mobile equipment, cabs or acoustic
materials, things like that, yes, we would be looking into
the control of the machine, but for pulverizers or such
where the exposure of a person working in that area is at or
below the PEL, there would be no need to actually apply
engineering controls to those devices. Thank you.
MR. VALOSKI: Mr. Lemke, you wanted to address the
panel again?
MR. LEMKE: Yes, just for one minute.
MR. VALOSKI: Okay. You can address us. We're
not getting into any debate between --
MR. LEMKE: I understand.
MR. VALOSKI: -- peoples' given testimony.
MR. LEMKE: I just wanted to tell you that Greg
Frazier represents Thiele Kaolin, and as we have a large
spectrum of companies involved in noise programs, you are
looking at --Greg's testimony is one of the very best. He
won our presidential award, that company did for safety in
its safety performance. DBK won it the year previous. But
what you are talking about, when he is giving his testimony,
please understand you are talking about a company that has a
vision of safety that is of highest excellence and please
understand that. The cost factors this company puts in in
their safety training is quite significant. So we have a
large spectrum and I just wanted to make sure you
understood. Greg is very proud of his program, but it is an
exemplary program, one that is very suitable because of that
community in which they live, they work very closely with
the medical community and a lot of miners don't have the
resources nor the vision that his particular company does.
MR. VALOSKI: Thank you.
Okay. Our next speaker this morning is Mr. Pete
Martinez of Texas Utility Mining.
MR. MARTINEZ: My name is Pete Martinez, spelled
M-a-r-t-i-n-e-z. I am the Industrial Health Manager for TU
Services, which is a subsidiary of the Texas Utilities
System, and included in our Texas Utilities System is our
Texas Utilities Mining Company. We refer to them as TUMCO.
TUMCO is an operator of three surface lignite mines in East
and Central Texas. These three mining operations produced
over 29 million tons of lignite annually. TUMCO would like
to submit these following public comments which we believe
to be relevant information with respect to MSHA's proposed
regulation on occupation noise exposure.
At TUMCO we have had a comprehensive hearing
conservation program in place for over 15 years. Our
program has been effective because we have addressed the
subject of noise exposure for employees both on and off the
job. Our program basically consists of three key elements
which involve, number one, employee education and training;
number two, providing hearing protection; and number three,
voluntary audiometric testing of employees.
TUMCO does not believe that all noise induced
hearing loss is caused by on the job exposure. Some hearing
loss is also directly attributable to what employees do off
the job; examples: music, chain saws, lawnmowers,
motorcycles, guns, rifles. We believe that MSHA has not
addressed the issues with off the job exposure which also
contributes to hearing impairment of employees. At TUMCO we
have tried to educate our employees on the hazards of all
noise exposures which include noise exposures at our mines
as well as noise off the job. Our employees are also
instructed on the benefits of hearing protection devices,
ear plugs, ear muffs, to safeguard against high noise
exposure and we give these hearing protective devices for
use on the job. Also, employees are encouraged to use the
hearing protective devices off the job.
Our program is complemented by our voluntary
audiometric testing program for our employees. Even though
our program is totally voluntary, we still have about 75
percent of our employees participating in the audiometric
testing program, when it is offered. We feel that our
employees participate in these programs because they are
generally concerned about the hazards of noise exposure, and
they want to know the status of their hearing level. This
information then provides them direct feedback and
encouragement to continue to wear hearing protectors when
exposed to any high noise environments.
In reviewing the last 15 years of audiometric test
data on our TUMCO employees, we can conclude that our
hearing conservation programs has been successful. The
specific results indicate that only about 0.4 percent of our
employees are considered as being hearing impaired -- that's
after applying the age correction factor which is included
in MSHA's proposed regulation. This is by using MSHA's
proposed definition for hearing loss which is defined as a
loss or change in hearing of an average of 25 dB or more at
the 2000, 3000 and 4000 hertz frequencies in either ear.
A study of the combined results of all audiometric
tests performed at our three mine sites in TUMCO revealed
that only five employees out of approximately 1200 employees
had a hearing impairment using the definition of the average
25 dB change, again at the 2000, 3000, 4000 hertz. This is
with results of test data on employees as last measured in
1994 at two of our mine locations and as recent as 1996 in
our other mine location. A few of these hearing losses
could also be further challenged as not being directly
attributable to on the job exposure since the loss was only
significant in one ear. Our noise exposure in our surface
mines is generally considered to be all around. Therefore,
any on the job exposure should be symmetrical to both ears
with resultant hearing loss to both ears. In some of our
cases the employee's hearing loss is only significant in one
ear. This impairment could have been just as likely caused
by the employee's off the job hobbies such as shooting
rifles or shotguns or caused by a medical problem.
When we factor the above points we realize that
our programs at TUMCO have been successful in protecting
employees from noise. Again, the basic premise of our
program has been to educate the employees on all noise
exposure hazards and encourage employees to use hearing
protective devices both on and off the job.
MSHA's proposed regulation for occupational noise
exposure in coal, metal and nonmetal mines will require the
operator to use all feasible engineering and administrative
controls to reduce the miner's exposure to the PEL. The
proposed rule as written would require that engineering and
administrative controls, not hearing protectors, become the
first line of protection throughout the mining industry.
This is because, as MSHA has stated, it does not believe
hearing protection devices to be effective in preventing
miner hearing impairment.
Also in MSHA's preamble of the new regulation it
states that this new regulation will save hearing to
approximately 15 percent of U.S. coal miners and that the
change alone to feasible engineering and administrative
controls will prevent 3 out of every 5 impairments projected
to occur due to occupational noise exposure in the coal
mining industry. We believe our experience in TUMCO refutes
this argument because we have demonstrated that hearing
protection can be very effective in protecting employees
from noise exposure without relying on more costly
engineering controls.
MSHA's new proposed regulation on noise will
require that mine operators go through some exhaustive and
costly efforts on trying to engineer out noise exposure
above 90 dB or the PEL. TUMCO would argue that this
approach will greatly add to the mining industry costs and
very well may be less effective in hearing preservation. As
we have said before, our employees are exposed to noise both
on and off the job. You would not expect employees to use
engineering controls to protect them from their exposure off
the job from chain saws, motorcycles, lawnmowers. However,
you would expect and encourage employees to use adequate
hearing protection when exposed to all high levels of noise.
This is a common sense approach that we feel MSHA should use
-- should also allow in the workplace.
It is TUMCO's belief that a basic hearing
conservation program which educates employees on the hazards
of noise, provide adequate hearing protectors, and provide
audiometric testing of employees is all that is basically
needed to protect employees from noise. Our experience and
audiometric test results support evidence that this approach
will work.
Based on this evidence on the effectiveness of a
hearing conservation program, which involves hearing
protection as one of the key elements, we urge MSHA to
reconsider its position of requiring that the mining
industry initiate all feasible engineering and
administrative controls to reduce the miner's exposure to
the PEL. TUMCO believes that MSHA should take a more common
sense approach to protect employees from noise exposure by
allowing the use of hearing protection devices as a primary
defense against noise exposure.
As workable and practicable solution on the use of
hearing protection, we suggest that MSHA adopt OSHA's
current enforcement policy regarding 29 CFR 1910.95 which
allows employers to rely on personal protective equipment
and a hearing conservation program rather than on costly
engineering and/or administrative controls where ambient
levels are below 100 dBA on the 8-hour time weighted
average.
Thank you for allowing me to make these comments.
MR. VALOSKI: I have a couple of questions.
MR. MARTINEZ: Sure.
MR. VALOSKI: The first one is, you said 75
percent of the employees who are offered voluntary
audiometric testing participate.
MR. MARTINEZ: Right.
MR. VALOSKI: Are those employees exposed above
the PEL or --
MR. MARTINEZ: I would say 50 percent of those
employees, of all of our 1600 employees, are above -- in
some conditions above the PEL, not day in and day out, but
in some of the work environments they would be exposed above
the PEL, right.
MR. VALOSKI: So you actually monitor the
employees and you've got --
MR. MARTINEZ: We've got noise surveys that also
shows that our equipment is noisy, or whatever, and that
exposure is, you know, above the 100 percent exposure.
MR. THAXTON: How many years of exposure on an
average do your employees have?
MR. MARTINEZ: Let's see, we started our mines --
Glen?
MR. HOOD: About '71.
MR. MARTINEZ: '71 is when we started our mining
operations in Texas Utilities.
MR. THAXTON: So most of the people are long term
employees?
MR. MARTINEZ: Right.
MR. THAXTON: Is it possible to have you submit
the data that you referenced, that is audiometric data,
along with the exposure data that you've collected in
relation to its -- if not all employees that you've looked
at, at least on the ones where you have shown that there is
a hearing loss -- reportable hearing loss.
MR. MARTINEZ: I don't have that data with me.
We'd have to go back to our mining company since that is
confidential information. We can ask for it and submit
that. By what date?
MR. VALOSKI: We'd have to have it by June 20th,
but the thing is, we do not need to know the social security
number or the name or anything like that. You know, miner
number one, two, three, four, five would be sufficient.
MR. THAXTON: As long as you think both types of
data, that is, your exposure data and your audiometric data
the same way so that miner number one is miner number one on
both types of data.
MR. MARTINEZ: Sure.
MR. VALOSKI: We don't need to know the identity
of any of the miners.
MR. MARTINEZ: Okay.
MR. CUSTER: Sir, your company's facilities are
inspected under 30 CFR 7071.75?
MR. MARTINEZ: Our mines are, yes.
MR. CUSTER: Okay. I would assume, that being the
case then, that you normally would conduct two surveys on
each miner at those facilities during the year, is that
correct?
MR. MARTINEZ: I'm assuming the six month surveys
have been performed per the regulations.
MR. CUSTER: Thank you.
MS. PILATE: I have two questions. You mentioned
that your company normally has annual employee training on
hearing.
MR. MARTINEZ: Yes.
MS. PILATE: How long does that last?
MR. MARTINEZ: I'm not sure. It's part of the
eight hour refresher. Is that right, Glen?
MR. HOOD: Probably. That particular training
will last about an hour on hearing conservation and hearing
protection -- about an hour.
MR. THAXTON: It is part of your Part 48 training?
MR. HOOD: Part 48 training. That is correct.
MS. PILATE: For the audiometric testing do you
have a contract audiologist or do you have one on staff?
MR. MARTINEZ: No, we have a -- We send all our
audiograms to an audiologist for validation.
MR. VALOSKI: Who conducts your testing?
MR. MARTINEZ: Our testing is performed by trained
safety professionals or a contract. We have used both
methods in the past.
MS. PILATE: For the contractor that is performing
the audiometric testing, do you pay per employee or do you
pay a contractor's fee?
MR. MARTINEZ: We pay a contractor fee.
MS. PILATE: Do you know how much?
MR. MARTINEZ: I think it is about $30 per hour.
MR. CUSTER: Your operations have been ongoing
since about 1971 or '72?
MR. MARTINEZ: That's right.
MR. CUSTER: In the earlier years how successful
were you folks in the use of engineering and administrative
controls in reducing miner noise exposures? Because that is
one of the bases for the coal regulation as it currently
stands.
MR. MARTINEZ: I'm afraid I can't answer. I don't
know that history that well.
I brought another gentleman with me that would
like to do some follow-up comments if we can.
MR. VALOSKI: Sure.
MR. MARTINEZ: Glen Hood.
MR. HOOD: Yes, my name is Glen Hood. I also work
in the TU Services organization for Texas Utilities Mining
Company. One comment I wanted to --
MR. VALOSKI: Spell your name.
MR. HOOD: Hood, H-o-o-d.
One comment that I wanted to make was, the data
that you requested as far as the audiograms and surveys that
you were asking about, we have compiled that information as
part of a member of the National Mining Association. So
some of that data may be presented to you, I guess, in
Washington that's coming up shortly. So we have supplied
that information as a member company to the National Mining
Association. So, I don't know if you want duplicate
information, but I just wanted you to know that that
information has been provided to the National Mining
Association.
MR. THAXTON: What you provided to the National
Mining Association, was it by any chance on a computer disk
or hard copies?
MR. HOOD: It was hard copies.
MR. THAXTON: Oh.
MR. HOOD: You were afraid of that, right?
MR. THAXTON: I was afraid of that.
MR. HOOD: I just wanted to make that comment.
Thank you.
MR. VALOSKI: All right. At this time we would
like to take a short 15 minute break and give everybody a
chance to stretch their legs and we will reconvene at 11:30.
(A short recess was taken.)
MR. VALOSKI: It is now 11:30. I would like to
reconvene the public hearing.
Our next speaker is Mr. Charles Machemehl from the
Georgia Crushed Stone Associates. When you come up to the
podium please state your name, spell it and who you
represent.
Also, for anybody who has come in. We have a
sign-in sheet at the rear of the auditorium here for anybody
to sign the attendance sheet, and if anybody who has just
shown up would like to speak, please sign the listing in
front of Ms. Roz Fontaine at the far right of the table.
Sir, you have the floor.
MR. MACHEMEHL: Thank you, sir. I am Charles
Machemehl. I'll spell it if I can.
(Laughter)
MR. MACHEMEHL: I used to say Charles M. when I
was in the second grade. Everybody else could spell theirs.
M-a-c-h-e-m-e-h-l. I am Executive Director of the Georgia
Crushed Stone Association. We have about 70 members. We do
a little under a billion dollars' worth of business.
Georgia is number five in crushed stone. Crushed stone is
the most economic building material in the world. It goes
into concrete, asphalt and everything we use. So it is very
important and y'all do a good job with our industry and
we're highly appreciative of MSHA.
I was going to start my speech off by saying your
lady gave us 20 minutes and we don't need but probably --
Ken Stockton and I -- maybe ten. So I was going to extend
southern hospitality to you and have ten minutes of my
presentation a break.
(Laughter)
MR. MACHEMEHL: What I will do, I'll say you'll
get to eat ten minutes early because we'll move right along.
I gave you a copy of it, Mr. Chairman, and there's one just
like that in the folder and I left the folder open, if you
want to pull it out, the signed copy.
We'll move through this pretty fast. Some of
these things have already been covered. Item 1, monitoring.
Most of our big members have a system of monitoring. Item
2, we talk a little bit about notification of exposure
level. You've got 10 days. Some of your other speakers
have suggested that to be extended. I think the Mining
Association said 30. We're saying 60, but it's going to
take us more time to do that than the 10 days.
On threshold sound level counted, we have no
problem with, of course, the 90 we're under now or we have
no problem with the 80 that you propose. However, we do
suggest that you, like the other speaker, the cement person
-- he did a great job -- use OSHA in those cases like that.
We would suggest that.
The exchange rate, the 5 decibel exchange rate, we
have no problem, or the ceiling level of 115. The testing
on hearing protector selection and use, we are of course in
agreement with the annual requirement, which is present in
the OSHA requirement. However, it would be suggested that
MSHA adopt the OSHA standard of requiring this when the
weighted 8-hour average exceeds 85 decibels.
On training on audiological and employment
program, that seems to be adequate. We are in complete
agreement with what you are proposing. On the quiet period,
you've had several comments about the use of hearing
protection during the quiet period. I think you've got to
look at that in great detail because as a military person I
can assure you that if I had a person working for me that I
was going to test and there were fourteen hours in there and
I don't have any control, he could be a flight line person
and he could -- or as somebody said, a rock-and-roll band,
you've got some problems in there on that the way you've got
it stated and you need to really staff that out.
On the standard -- the next item, standard
threshold level, we concur with what you are proposing
there. On your reportable hearing loss, we are in agreement
there. However, there should be included a means of
acknowledging both for MSHA and the producer that an
employee's shift in threshold could be caused by
occupational noises, just as I've said on the military side
or a rock-and-roll band or something like that.
Employee access to records, that's the way it
should be. They should have access, just as we do in the
military -- or did in the military. Don't -- I'm not really
-- My military was all guard -- most of it was guard and
reserves, so I really come out of the industry. So I just
use that as a reference because I love the military.
The 85 decibel exposure trigger, we concur in that
as we say in the written part and the 90 decibel exposure
dose trigger, we strongly urge MSHA to allow the use of
hearing protection as well as engineering and administrative
controls to get below the 90 decibel level. Hearing
protection should be the primary method used.
Now -- and of course, the 105 decibel exposure
dose trigger, the Georgia Crushed Stone agrees on the use of
hearing protection as proposed in the standard there.
Now, there are about one, two, three, four, five,
six comments I'd like to make that get into some of the
problems that have been discussed, and I would like to go
into those a little deeper.
On your engineering out the sound, I think that's
the biggest problem with the proposed regulation the way I
see it -- I'm an engineer and the way I see it, it's just
like a doctor. An MSHA engineer may say, here's how to do
it. I may go off and try to do it. He may come back and
say, you didn't quite do what I had in mind. I may say
something else. So you can get very subjective in this
problem. What we've got to do, work toward, I think
together, as an industry, is we've got to be able to buy
equipment that has certified decibel levels. In order to do
this we probably need to get in legislation, just as we do
when we work on highway legislation. For example, if you go
back and read IST on the highway legislation you'll find
there are a lot of people that put things in there that
require research, and I think it has to be required by
legislation. I don't think it can be voluntary on the part
of industry, manufacturer or MSHA. I think in the
legislation it has to state there will be research that will
accomplish a means of MSHA's certifying decibel levels so
that if we go out as manufacturers (sic) to buy equipment,
we'll know that if we spend X number of dollars that we'll
wind up with that of equipment.
We had the pleasure of meeting with Ed Hugler at
the Mining Association's Safety Conference, which was
excellent, outstanding. He did an outstanding job with us.
We talked about this and I think he agrees with us in the
industry that we need to go in that direction. I think
that's a very important thing that should be done. I think
it will help everybody, help the individual, help everybody
and we'll move forward on that point.
Now, the second point I've already alluded to and
that's the one on how we're going to determine whether the
occupational or the job that the person has caused the noise
or whether he -- the threshold change or whether it was
caused by a rock concert or serving in the military on the
flight line in guard or reserve duty. I think that's one
that needs to be staffed out again by MSHA because that's
one that's going to cause a lot of argument, a lot of talk
and that's not really the objective of the regulation. So
we see that as a potential problem.
Also on the cost, we say -- we make the statement
that MSHA has not done a thorough study of cost and this
should be accomplished prior to implementation. I think the
problem here is until -- you know, y'all ask people what it
costs. Well, there's no way for us to answer that until we
know what the rule is, what the regulation is, what the law
is. So it is sort of like the chicken or the egg. It's
like working a calculus problem, if you will. You may not
know what the answer is or the question is, but you try to
come up with the best fit, and that's the problem we've got
on the cost. I don't think -- I think it is going to cost a
lot more than y'all think it is, but I don't know how to get
a handle on that until you get on down the road and we can
come up with the cost. I think anything that anybody is
telling you is just their best guess and I don't think --
you know, the big companies don't think they've got a
problem, but unless we solve the engineering part of it, I
think we've all got a problem. And, of course, the little
companies that don't have any program going on right now,
they certainly do have a problem. We represent all the
companies.
Now, this is a very important point right here.
When you decide what you are going to do, then what we want
to do is work with you very closely on seminars and schools
so that we train and teach our people the same thing you are
teaching your inspectors. We had the pleasure of -- Martin
Rosta was at the meeting. We had the pleasure of talking to
Martin about this, and I think the way y'all have worked
with us in the past on things has been outstanding. We'd
like to work with you that way in the future and we need to
work together. That takes a lot of the subjectivity out of
it. If we know what we're going to do and y'all know how
you're going to enforce it on us, then we can comply and
we'll get where we are trying to get.
I've already covered the time point on the 60
days. You've got 10 days in there. It may take 60. You've
heard a lot of reasons why. People could be gone. They
could be on vacation. As far as that goes, I'm not sure I
could get the word out myself. I'm not sure in the military
we could get the word out to somebody in ten days. I'm not
sure right now if you tell me we've got to do something in
10 days -- Ten days is just pretty fast right now. It's
just hard. You can put it in the law, but I'm not sure we
can comply with the 10 days. I'm not sure anybody can. I'm
not sure MSHA could with their own employees.
The Georgia Crushed Stone Association believes
very strongly that noise protection should be part of an
employee's safety requirements, along with safety glasses,
steel toed shoes and hard hats. Although every effort
should be made to keep the noise down through engineering
and administrative, noise protection should be the primary
responsibility of the employee as well as management to
ensure it is accomplished. So we would see that -- If we
had people in the military that went on a flight line, they
wore hearing protection. If they didn't and they busted the
rule two or three times, they might get busted. So the
point is, we ought to look at noise protection that way and
ought to look at it as the primary element of protection and
not as we interpret the rule that y'all wrote that you're
making engineering number one, administrative number two and
then we'll use the protection if all else fails. I think
you ought to turn it around and make hearing protection
number one. You ought to make administrative control number
two and make engineering number three because I believe it
is going to take you a long time to get to the point where a
manufacturer can tell me what the decibel level is going to
be on that equipment if we go out and purchase that
equipment. And that's what it is going to take to really
become effective, whether you're MSHA, OSHA or what-have-you.
So that's kind of our presentation and I'll be
glad to answer any questions I can, but I've got enough
people I know in the audience that can answer it for me if I
can't, Mr. Chairman.
MR. VALOSKI: Thank you.
MR. MACHEMEHL: And Ken Stockton will follow me.
You won't -- you might want to hear Ken before you ask the
questions. He's head of our safety committee. Your
pleasure, you're the boss. You're in command.
MR. VALOSKI: I understand you have a meeting to
go to this afternoon.
MR. MACHEMEHL: I've got plenty of time. I can be
here as long as you need me. This is my number one thing
for today.
MR. VALOSKI: And Mr. Stockton's going to
supplement your testimony?
MR. MACHEMEHL: To whatever extent he wants to.
He's my committee chairman, so he's my boss.
MR. VALOSKI: Okay. Why don't we save the
questions until you're both done and we'll address the
questions then.
MR. MACHEMEHL: That suits me because he can
probably answer them a lot better than I can. Thank you,
sir.
MR. VALOSKI: Mr. Stockton.
MR. STOCKTON: I'm Ken Stockton. I am Director of
Safety and Health for Davis and Mineral Properties and I'm
here today as Chairman of the Safety Committee for Georgia
Crushed Stone Association --
MR. VALOSKI: Spell your name.
MR. STOCKTON: Stockton is S-t-o-c-k-t-o-n. First
of all, it's my understanding and I believe it is with MSHA
that the number one priority here is to protect the miner,
the mining employee from noise overexposure. The key there
being, overexposure. If we in the mining industry have our
employees in hearing protection that reduces the noise level
to below the PEL, there is not an overexposure to that
miner. If there is not an overexposure according to MSHA
standard there should be no hearing loss. So my comment is
in reference to that and that hearing protection be allowed
to reduce that miner's overexposure to below the PEL, first
and foremost. If it can not do that, then other controls,
as Mr. Machemehl has eluded to and other people in this
room, would be the next thing in line to be targeted after
that. But, the way the MSHA standard is written now, even
now and would be later, if there's an overexposure -- if
there is an exposure to the miner above the PEL it's a
citation even though he may be wearing protection. Now if
there is a problem with your study of hearing protection and
you don't agree with the NRR ratings, then maybe what should
happen is that MSHA get with ANSI or NIOSH and develop
criteria to say this is approved or adequate hearing
protection that can be used in the mining industry to reduce
the noise exposure to that miner.
We already use personal protective equipment such
as hard hats, safety glasses, steel toed boots which removes
the miner, supposedly, from the hazard that's out there.
Noise is no different. If it is considered a hazard, then
personal protective equipment should be allowed to be used
to remove that miner from the overexposure. That's my
comment.
MR. VALOSKI: Thank you. Questions?
MR. CUSTER: Mr. Machemehl, when you started your
testimony you had mentioned that a number of companies do
indeed currently conduct exposure monitoring of a lot of
their miners. Would you have any idea, or maybe Mr.
Stockton would have an idea, what frequency of monitoring is
generally performed? Do you sample each miner once a year
or twice a year or just those that you feel might be exposed
at certain decibel or a time weighted average levels?
MR. MACHEMEHL: I think it varies by company. At
least once a year, but it varies by company, and when I said
all of them, I didn't mean to imply all of them do. I'd
say out of the -- we produced 65 million tons last year and
probably that was produced by, I would say, 95 percent of
our members and I would say that most of those -- most of
the big companies have programs right now where they're
monitoring the individual and like these people have said,
most of them -- most of them do this on a continual basis.
I mean, they're -- it's voluntary, a lot of it, but they do
it on a continual basis. Whether you need to do it, if
you're getting to the point whether you need to do it, twice
a year or whether you need to do it once a year, I would
think -- I would think myself -- and this is based not just
out of this industry, but on some other, on the military
side too -- it depends on the job as you alluded to. In
other words, if a person has a job that where he's at the
primary crusher continually and somebody's used
administrative controls and protective equipment, as Ken
talked about, you need to really monitor that person close,
just like we do if you've got a person that's working out on
the flight line because you may have -- you may find a
problem. If you've got another person that's, say he's a
geologist or something like that, that is not exposed to the
equipment continually, maybe a once a year physical and a
check like most -- like you and I probably get, is probably
all you need. So that would be my answer, but it varies by
company. I don't think you'd -- you'll probably hear the
National Crushed Stone Association on the 30th and they're -- the person that's going to give the testimony is here
today. I won't divulge who he is because I told him I was
going to say if we got a question I'd let my chauffeur
answer the question in the back of the room --
(Laughter)
MR. MACHEMEHL: -- but I'm not going to divulge who
my chauffeur is, so -- but I think they'll probably tell you
the same thing. It varies by company and I'm not going to
say the biggest company has the best program. I don't know
that that's true, but I know the big companies all have
programs and I think it varies. Now Ken may want to talk
specifically about Hanson & Benchmark.
MR. STOCKTON: I can tell you what we do. We have
a hearing conservation program that all the people, every
person at the quarry even in the office, are tested, go
through an audiometric testing every year. All the people
there when they're in posted areas are required to wear
hearing protection. We go through and monitor twice a year
for all the areas. In the areas that are posted for hearing
protection we monitor more frequently than that. If we have
a miner who works -- we have -- in our company everyone's
trained to do just about everything, so they're switched on
and off in different areas. But if we have one that stays
in areas of exposure longer than others, then those are the
ones that get tested more often.
MR. CUSTER: Does the company -- I have two
questions to follow up on what you just said. Does the
company practice the use of administrative controls, that
is, the rotation of people as a result of the fact that most
of the workers there can do a multitude of tasks?
MR. STOCKTON: We have if it has been possible.
MR. CUSTER: And then, in regard to the
monitoring, does the company conduct that using sound level
meters where they come in and look at specific elements of
the job especially where the exposures or the noise levels
may be high or do they generally use full shift dosimeter
sampling?
MR. STOCKTON: We do both.
MR. CUSTER: I suppose you maintain exposure
records of some kind?
MR. STOCKTON: Yes, sir.
MR. THAXTON: Mr. Stockton, while you're up at the
podium, you mentioned that the wearing of PHP if it results
in an exposure being less than the PEL that that should be
sufficient. What are you basing that statement on that PHP
actually provides and maintains a miner's exposure below the
PEL?
MR. STOCKTON: State that again, please.
MR. THAXTON: What are you basing your statement
that personal hearing protection if a miner is provided that
that it will maintain their exposure below the PEL?
MR. STOCKTON: I believe what I said was is that
if the hearing protection is adequate hearing protection as
stated in the MSHA standard, I think what I was saying was,
if that hearing protection reduces the noise below the PEL,
then there is no overexposure to that miner.
MR. THAXTON: Based on what criteria though as far
as looking at the personal hearing --
MR. STOCKTON: Just based on the NRR rating. The
only way to really know if it's ever going to do a job is
for the MSHA inspector to stand there and watch the guy all
day to make sure he wears it or we stand there and make sure
he wears it all day to know whether the NRR rating is
affective because he's wearing it all day.
MR. THAXTON: So you're saying to assume and use
the current NRR rating of a personal hearing protector as a
measure of its efficiency and then also assuring that the
miner wears the hearing protection at all times?
MR. STOCKTON: Correct. It's always going to be
up to us to make sure that he wears it all day.
MS. PILATE: I have questions for both speakers.
For Charles Machemehl.
MR. MACHEMEHL: Yes, ma'am.
MS. PILATE: You spoke of your association
producing one billion dollars in crushed stone and also of
the producing 65 million tons --
MR. MACHEMEHL: I understand the question. I
mean, I know we had interference, but I understand your
question. How do you get to that point?
MS. PILATE: No. My question is, how many
companies are in this GCSA and how many are represented by
those numbers?
MR. MACHEMEHL: Okay. We have about 70 total
members, nine producer members -- about nine producer
members and about 60 associate members. The 65 million tons
that was produced last year, that was material just -- that
wasn't Georgia's total, that was our total, our association
total and it was produced by the nine producer members. Now
I can give you a copy of the -- our directory and that has
who they are in there if you'd like that. I don't -- you
know, I've got one with me and I'll be glad to give it to
you. So I'll get it out of my briefcase and hand it to you
as soon as I go back to my seat.
MS. PILATE: All right. For the 70 members and
the nine producing members, how many of those are small
mines?
MR. MACHEMEHL: Out of the nine producers, they're
the people that produce the crushed stone, we've got two
that I would say are small producers and I would think the -- I would classify the others as medium to large.
MS. PILATE: You spoke of some of your associate
members having HCP programs. How many of those -- exactly
how many have HCP's?
MR. MACHEMEHL: How many have programs?
MS. PILATE: Yes.
MR. MACHEMEHL: I would say that -- I know for
sure that out of the nine producers that five have programs
and there may be -- I don't know for certain about the other
four, but I would guess that out of the other four that
there might be one or two that have programs, but I wouldn't
-- I couldn't look a judge in the eye and swear that they
all do, but five of them do, yes, ma'am.
MS. PILATE: Do you know how many of them have
noise training programs now?
MR. MACHEMEHL: Have noise training?
MS. PILATE: Yes.
MR. MACHEMEHL: I would think everybody has some
type of noise training because we're very much involved with
MSHA training and we've got a management development course
that we've just started up and we'll be going into the third
phase of that, and everybody has to have MSHA refresher
training and we're blessed with a person here, Glenn Roscoe,
at Pickens Tech that goes around -- he works also with the
mining industry with Lee's people that you heard testify
this morning, Mining Association of Georgia. We're very
active in that area and I think -- in fact, I'll quote back
to you what Ed Hugler told all of us. We had a joint safety
conference down there and he said that Georgia had the best
safety program of any state in the union. I'll get that on
record and I'll knock on wood, we haven't had any of the
fatalities that y'all are worried about right now and, of
course, we could have one today, so I don't want to act --
knock on wood -- but I would say -- I would say all of them
get the training, but I don't think all -- they don't all
have the programs.
MS. PILATE: You made a rather empty statement
that MSHA has overestimated the -- underestimated the cost
of rule.
MR. MACHEMEHL: Right.
MS. PILATE: I'm curious to know if GCSA has
reviewed the RIA, Regulatory Impact Analysis.
MR. MACHEMEHL: No, ma'am. I've looked at -- I've
looked at it. I mean, I've read and that's just one person
looking at. I've looked at your numbers, but my -- that's
not my basis. I'm not criticizing whoever did it and I'm
not sure if I did it I could have done it myself any better.
What I -- to -- what I was trying to explain and I probably
did a poor job explaining it, but what I was trying to say
is that without knowing what the rules are going to be, what
the criteria is going to be, it was very, very hard for
anyone to come up with a cost estimate that I felt like you
could say, this will be the cost, and if you knew what that
was, if you knew what the rules were, I think you could come
up with accurate costs. Your cost probably -- we probably
should say you did the best you could do under the
circumstances, but I don't think it's -- I don't think it's
-- I think it's going to cost us more by the time this
program is implemented. There's big -- there's a big
unknown out there and that's this -- that all the industry,
I think, is afraid of, not just Crushed Stone, but that's
just engineering the sound out. If I was on your team, if I
was wearing your hat in MSHA and you told me to go out there
and really get industry and make these guys engineer the
sound out, you could go out there and the cost of this could
be unlimited and that's what -- that's what's a little bit
scary about it. That's why we've got to come to some
meeting of the minds, if you will, some -- we've got to take
as much subjectivity out of it as we can.
MS. PILATE: For Ken Stockton, I have some
questions. You mentioned that all of your employees are
tested. Are they tested on site?
MR. STOCKTON: Yes. Would have a mobile van that
comes around and does the testing. It's contracted. It's
not tested on site by our people if that's what you're
asking.
MS. PILATE: Offhand, do you know the cost of
doing that?
MR. STOCKTON: The cost is I think about $15 per
employee. That's not counting the time that they take away
from work or anything, that's just direct cost to the van.
MR. VALOSKI: Mr. Machemehl, in your draft
statement you gave us under Part (f), you said that the
noise protection should be the primary responsibility of the
employee. How would you want MSHA to regulate that or what
suggestions would you have for us to regulate that?
MR. MACHEMEHL: Well, I think very -- I think very
simply put, if you -- if I've got somebody that doesn't have
a hard hat on or safety glasses on or steel toed shoes,
you're going to write me up, and I would see you doing the
same thing if we use noise protection as a primary factor.
In other words, I'm violating the requirement. That's
exactly what we do in the military. I mean, I don't see --
I don't see -- the idea that a miner, if you will, won't
wear hearing protection, I don't think that should be -- I
don't think that should be a factor. I think if the rule --
if that's the rule, then that's what he should wear, period,
and that's the way I do it. I mean, discipline, if you
will.
MR. VALOSKI: The company would discipline the
individual miner?
MR. MACHEMEHL: Well, sure, and you'd write me up
if you came in if I was -- if I was the inspector and I came
in and the person didn't have the equipment on, then
certainly I would be written up. My company would be -- or
if it was my company, I'd be written up. Sir, I don't see
that as a problem as far as the -- I don't think the
discipline's a problem. If you'd been down in our safety
conference you'd probably agree with me because one speaker
-- and I'll quote him so you won't think I'm making this up
-- but he was given all these facts about the fact that he
didn't have any problem getting the miners motivated because
there's been studies done that noise -- if you improve your
noise protection you improve your sex life.
(Laughter)
MR. MACHEMEHL: Now, that came right out of the
mining conference. So my point is, if we're worried -- if
we're worried about discipline, I don't think -- I don't
think that's a problem. I think if you tell me, we're
coming in there to check to see if you've got your noise
protection, your hard hat, your steel toed shoes, your
safety glasses and you're checking me and I'm a miner, I
know I've got to have that on or I'm going to get in trouble
and if I -- if I violate it enough I'm going to lose my job
and that's just -- so you -- I don't see this as a problem.
I mean, when people tell me it's a problem, they won't wear
this or won't wear that, I have zero sympathy.
MR. VALOSKI: My only point was that MSHA would be
on the -- the MSHA inspector would look to the operator
rather than to the miner.
MR. MACHEMEHL: Oh, certainly. Certainly. Well,
the MSHA inspector should on anything. I mean, I'm the
commander and you're coming in, you're the IG. You're
inspecting me.
MR. VALOSKI: All right. Thank you.
MR. THAXTON: I have one follow-up with -- and I'm
not going to argue with you over the sex life thing.
(Laughter)
MR. THAXTON: Personally it sounds pretty good.
MR. MACHEMEHL: Let me hand this to this lady.
MR. THAXTON: Just to follow up on a statement you
made to the lady on the end about the cost, you divided up
your producers by size, small, medium and large. What is
your basis for determining who's small, medium and large?
Is it production or number of employees?
MR. MACHEMEHL: Oh, it would be production.
MR. THAXTON: If you were to break that down by
number of employees using MSHA's criteria of 19 or less
employees being a small operator, can you tell us what the
breakdown would be?
MR. MACHEMEHL: It would be the same. It would be
the same. We've got two -- out of the nine producers --
it's easy in Georgia because we've just got nine producer
members and out of those nine you've got two that would be
less than 19 and the other seven would be greater than 19,
yes, sir.
MR. THAXTON: Okay. Thank you.
MR. CUSTER: Sir, does Georgia Crushed Stone
Association represent any sand and gravel operations?
MR. MACHEMEHL: No, sir.
MR. CUSTER: None at all?
MR. MACHEMEHL: None at all, but there's only --
to -- so you won't think we're leaving that out, there's
only about five million tons of sand gravel produced in
Georgia. It's predominately crushed stone, so there's
little sand and gravel. It's not like it is nationally.
Nationally it'll be, oh, I'd say 60 percent crushed stone,
40 percent sand and gravel now. It used to be about equal,
but it's about 60/40 right now. But in Georgia it's just
almost all crushed stone, yes, sir.
MR. CUSTER: Well, being with Georgia Crushed
Stone Association and obviously being in communication with
other similar associations across the country, has there
been any feedback from sand and gravel operations in regard
to the training requirements that would be specified in this
proposed rule and I'm asking that from the standpoint that
currently under Part 48 training requirements, you know,
there's an exemption rider on different appropriations bills
and that sand and gravel does not need to train under Part
48. Has there been any feedback that you're aware of from
these S & G people relative to those training requirements?
MR. MACHEMEHL: Are you talking about MSHA
training or specifically about noise?
MR. CUSTER: I'm talking about the training in
this proposed regulation.
MR. MACHEMEHL: The noise training?
MR. CUSTER: Yes.
MR. MACHEMEHL: No, I don't think there's been --
I get all the publications from the national, from the NAA,
National Aggregate Association, and certainly they're aware
of it and they communicate it, but as far as there are very
-- and I'm sure North Carolina has a pretty active
association -- Fred Allen -- they're crushed stone and sand
and gravel because there's more sand and gravel there, and
they're aware of it, and they, you know, they comment on it,
but generally speaking to answer your question would
probably be no. You've got a lot of small producers in sand
and gravel and the only comment I'd make to you on that
which may seem hard to some people, but I wouldn't relax any
of the standards that y'all are proposing because a producer
is small. What I would do is do the same thing that the --
most of the highway departments do with small producers.
They work with them until they can bring the quality of
their material up to whatever the highway departments
specify. In other words, I think what you've got to do is
bring the small person up to that level, but you've got to
give that person enough time to do that and that's been --
some of the other people that testified before us has said
the same thing to you. You've got to give them time to
bring them up -- you've got to help them, in fact, get them
up -- get them up to the level, but I wouldn't -- I wouldn't
cut the level or anything, but you've got a lot of small
people out there with sand and gravel and you may have to
furnish them help. I'm not sure some of them know there's
even a noise standard coming out. They may not know there's
one now, but -- so y'all have got your work cut out for you
as far as to help the -- a lot of those small sand and
gravel people.
MR. LEMKE: I should mention, under Georgia
Mining, we represent 12 small sand producers all classified
under the 19 employees and there's 12 of them in our
association.
MR. CUSTER: Well, I wasn't looking at it from a
standpoint of small versus large in a 19 and less or 20 and
more. I was just looking at from the current Part 48
training exemption and the fact that some of this training
can be incorporated in the Part 48 where it's applicable and
there's probably not a lot of other training going on in
sand and gravel. At this point I just wondered if there was
a negative feedback.
MR. MACHEMEHL: I don't think any of those people
are really negative on anything. I think it's a matter of
just getting them up to date and getting them up to speed
and I think that -- we've got to all do that in the industry
because, you know, the outside world, the guys that I don't
like, the Sierra Club, that I'll fight any where, any time,
any place. Let that be a record -- on record.
(Laughter)
MR. MACHEMEHL: But we're -- what we've got to do
is work together in the industry and bring the small fellow
up to the standard so that we protect the hearing of every
individual. That's what we're here for. That's why we're -- you know, that's what America is all about.
MS. WESDOCK: On page three of your testimony
comments, you have here that Georgia Crushed Stone
Association is extremely concerned about how MSHA will
handle the noise hazard that employees are exposed to on a
non-occupational basis. Since we are only -- or we only
have the statutory right to regulate hazards that occur --
that are occupational hazards, I was just wondering, you
know, we'll probably face the same issue as OSHA faced when
they originally promulgated their noise standard.
MR. MACHEMEHL: Right.
MS. WESDOCK: Now with that said, do you have any
suggestions?
MR. MACHEMEHL: The only suggestion -- the only
thing I could think of and this is what I'd look at if I was
MSHA, I would look at the -- I would look to a person to --
to fill out a form, if you will, and we've got -- that
person can not be forced to divulge information if he won't
divulge it, but I would look to that person to fill out a
form, if you will, on what he does, what his -- what he does
and make that form not be like we might do right now and
fill out a form and say, well, go stick it in a file and
that's it. If a person -- I would say if a person has a job
where they're exposed to a lot of noise, they drive a piece
of equipment, they run a crusher, what have you, or cement
mill, you just pick whatever you want to. If they've got
that job, then part of their record should be a sworn
statement and when I have to go get things notarized it
makes me think -- it makes me do it right. So I think what
you ought to look at is requiring that person on some
periodic basis, not -- I shouldn't say periodic -- We'll say
every three months that person has to set down and he has to
fill this form out, an MSHA form, and that form has to be
notarized and put in that person's record. At least that
person then, if he does have a part time job where he's
exposed to sound or he works or he's part of a band or
something like that, in other words, the form could say -- I
don't want to take up all the time here because you'll miss
your lunch -- but the form could say that you have to put
down any jobs or anything that you're in -- say you're in
the reserve or guard -- anything that you're in where you're
exposed to noise or you believe you're exposed to noise and
this has to be certified. This has to be signed by -- it's
just like giving testimony or giving a deposition in a court
case. That's what ought to be part of this person's record.
If you do that then when Ken comes along and sees a
threshold change he'll say, well, part of that threshold
change was due to so and so and so and so.
Now that may protect the company, but it also may
save this person's hearing because it makes him start
thinking about what he's doing and if he realizes that he's
-- that the he's ruining his ears or his sound, well then he
might not do it. So we'd be getting where we're trying to
get. We're trying to get back to the individual and help
that individual person. So that's the way I'd do it if I
was sitting on your side and I was doing for MSHA. But in
turn, if you do that it'll help us too. So that's the way
I'd handle it. There's probably a better way, but that's
the best way I could think of quickly.
MR. CUSTER: I don't know if a response to that is
in order, but I think it should be pointed out that that's
probably some power that you already have now as an employer
or your member companies have as employers, and it has been
especially effective in some industries relative to drug
usage and urine testing and all this type of thing. I don't
think it is within the authority of the Mine Safety and
Health Administration to place that type of requirement on a
miner to report to his or her employer off-site activities,
but certainly I think you have that power already as
employers.
MR. MACHEMEHL: Well, let me just debate you just
a little bit on that. I agree with you. I agree with you
that we could do that -- we can require anybody to do
anything for any job. However, if you require it as part of
this regulation, this implementation, that Ken was going to
show you that when you came, then it would motivate Ken to
do that so that he could show it to the inspector. So I
think we are both in this together. I mean, I know you're
saying we could do it why don't we go ahead and do it now.
The fact is, we probably -- we probably should be doing a
lot of things that we don't do, but if you require us to
show you some things it motivates us to do things that we
might not be doing now. Now, that's as honest as I can get.
So together, I think, we're in this.
MR. CUSTER: My point was I think you've got that
authority and the other point is --
MR. MACHEMEHL: Oh, I'm not arguing that.
MR. CUSTER: -- we don't have that authority.
MR. MACHEMEHL: I think you have the authority to
ask me though to see that person's record. If he is running
the primary -- and if you say, if you say, if you've got
that in the record it's going to help me, then it's going to
be in the record. So I think you are into it a little bit
too. I mean, it's primarily us, but whatever you do would
probably help us.
MR. STOCKTON: May I make one closing comment?
MR. VALOSKI: Sure.
MR. STOCKTON: Since I am supposedly still on the
podium I guess. In reference to your question, OSHA went
through the same process on their noise standard and they
were going to try to, if I remember correctly, accuse the
industry of automatically causing hearing loss through
occupational noises exposure, and that was thrown out, I
believe, and they had to go back and say, okay, there are
cases of non-occupational that has to be considered. In the
MSHA proposed standard you have similar wording that says,
noise overexposure will automatically be considered, I
believe, if it's a standard threshold shift of so much to
cause hearing loss, without consideration of the non-occupational noise exposure. And I think you are going to
have to go back and rethink that also. Is that -- Like
Mach has been alluding to in your questions, it is not
possible to keep up with what employees do on their personal
time. We are not allowed to do that. You are not allowed
to do that. So, we can't -- even in the 14 hour quiet
period before audiometric tests that OSHA requires and that
you are requiring in the proposed standard, we can not
follow them around for 14 hours and make sure they stay in a
quiet place before the audiometric test. We can't -- That's
their personal time. So, somehow you're going to have to
consider that non-occupational noise is going to be part of
their audiometric test, and even aging -- the aging factor
has to be considered in there, but they accuse us, and you
can't accuse us of causing all the hearing loss as I infer
from what your standard says right now. So you need to
consider that when you go back.
Anything else?
MS. WESDOCK: I didn't want to imply that I was
accusing anyone of --
MR. STOCKTON: No, no. I -- the language in the
standard, not you.
MS. WESDOCK: The only point I wanted to make is
that as far as regulating noise, we're only allowed to
regulate noise at the mines, and we are aware that there are
situations where miners might be exposed to high level
noise, you know, outside the mine. God knows I have a
daughter who probably can scream higher than, you know, the
standard. What I am saying is that we are only allowed by
law to regulate, you know, the exposure level at the mines.
That's the only point I wanted to make.
MR. STOCKTON: And you're exactly right, but the
wording in the standard was what I was talking about.
MR. VALOSKI: Okay. At this time I would like to
call a lunch break. Right now it is 12:22. We'll meet back
here at 1:30 and we will resume. We have several more
presenters scheduled.
(Whereupon, a luncheon recess was taken.)
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// A F T E R N O O N S E S S I O N
MR. VALOSKI: It is now 1:30. We would like to
reconvene the public hearing on MSHA's proposed noise
regulations.
Before we get started I would like to remind the
people in the audience that there is a sign-in sheet at the
back of the room. It is an attendance sheet, just please
sign. And if anybody in the audience would like to testify
and has not signed up yet on the speaker's list, please do
so. This list is being handled by Roz Fontaine on my far
right. For each speaker, please state your name, spell your
name and the organization that you belong to for our court
reporter.
Our first speaker this afternoon is Dr. John
Gibbs.
(No response)
MR. VALOSKI: Well, Dr. Gibbs does not appear to
be in the audience. So the next speaker on our list is Mr.
Dewey McCabe from Oil Dry.
(No response)
MR. VALOSKI: Well, we'll go down to the next
speaker, scheduled speaker, is Mr. Maurice Gibson from A&M
Products.
(No response)
VOICE: Did these people sign in?
MR. VALOSKI: Yes. The last person that asked to
testify was William Wolfe.
(No response)
MR. VALOSKI: This is going to be a real short
afternoon here. I'd like to read these four names again,
Dr. Gibbs, Mr. McCabe, Mr. Gibson, Mr. Wolfe.
(No response)
VOICE: You think maybe they got hung up in their
lunch?
MR. VALOSKI: May be. Why don't we take ten
minutes and hopefully they will appear.
(A short recess was taken.)
MR. VALOSKI: I would like to reconvene the public
hearing now on MSHA's proposed noise regulations.
Has Dr. Gibbs arrived?
(No response)
MR. VALOSKI: If not, we'll go to our next
speaker, Mr. Dewey McCabe from Oil Dry.
MR. MCCABE: My name is Dewey McCabe. D-e-w-e-y,
M-c-c-a-b-e. I am the Corporate Health and Safety Director
for Oil Dry Corporation of America, a Chicago, Illinois
based company. I live in Thomasville, Georgia, which I
enjoy the winters in Thomasville much more than Chicago.
(Laughter)
MR. MCCABE: I am here on behalf of my company to
express to you our feelings towards the MSHA proposed
standard and you've heard a wide range of comments. I'm not
going to address the whole standard. I think that has been
adequately done. I would just like to call your attention
to two specific parts of the standard. They are found in
162, 120(f)(2) where it states that the operate shall
maintain at the mine site a copy of any such matters
notification or list on which the relevant information about
the miner's notice is recorded for the duration of the
affected miner's exposure above the action level and at
least for six months thereafter. My comments there are, we
live in an entirely different society and age than we used
to live in ten years ago even. I work for a Chicago-based,
Illinois company. I live in Thomasville, Georgia. I am
paid through a Chicago bank. My point there is that I think
the record keeping responsibilities of the mine operators
are best done by its health and safety professionals and
what you're going to see in the mining industry across
America is that many companies are going to have multiple
sites of 19 or less. These people are going to be focused
on production quality and safety of the employees and we
believe that the record keeping would be much better done by
the health and safety professionals that may be a regional
sites and that we could make those documents available to
MSHA or to a MSHA regional office, you know, within a
reasonable amount of time. So I think that's the first
thing I'd like to address in the proposal.
A lot of small operators are not going to have the
personnel to deal with this. We think it can be done very
efficiently and effectively by the health and safety
professionals of these mine operators at a regional site and
we will -- Oil Dry will be glad to provide you with this
documentation should you need it.
Same thing on 62-130(b), when it talks about
training. We would prefer to keep those training records at
a regional site where health and safety professionals
resided.
And then my last comments -- I will be very brief
-- are on 62-140(b)(2). It has to deal with hearing
protectors being unacceptable during the 14 quiet period.
You have heard very extensively about that from the mining
industry, and let me explain to you one of the reasons I'm
here today. I met Ed Hugler last week on two occasions.
Had an opportunity to spend 45 minutes with him, and one
thing that struck me about the man is that he is a good
listener. He asked me to come and present my thoughts I'm
coming to present. I hope that you are good listeners as
well because I believe you are hearing this throughout the
industry that this 14 hour quiet period provision is
impractical and will have adverse financial impacts on mine
operators without producing the desired results. As mine
operators, we do not have control over non-occupational
noise exposures prior to the employees' arrival at work.
These exposures include -- and somebody must have been on
the same page because I have lawnmowers, chain saws,
woodworking equipment, late at night people are doing
hobbies, saws, drills, planers and music of various types
and decibel levels. We can not control the decibel levels
of our employees as they ride to the mine property. What we
can control is the exposure and the actions of the employee
once they arrive on site. And we think that the use of
hearing protectors during the period prior to their base
line audiometric testing is both practical and technically
correct and it basically for many operators is the only
viable and economical way for mine operators to successfully
implement the things you are asking us to do. And so we
would ask you to hear that very, very clearly. We think
that hearing protection does provide for the protection and
would result in audiometric testing that would be both
beneficial to the mine operator and MSHA.
My final comments are that -- and I could have
addressed many more issues. I don't want to do that.
You've heard them and they've been adequately presented, but
the final comments is, I think many people in the mining
industry, the mine operators, feel uneasy about the
engineering controlled language, and I think you addressed
it, you said you've heard it all over the country as you've
held these things. We already have in place many
engineering controls, but I would like to draw an analogy to
you -- for you, as Billy Yarbrough mentioned, there are
aspects about our processes that are 20 to 30 years old.
Rotary kilns are not going to be made silent or with less
noise in many cases, and there is other equipment that we
could mention to you, and the analogy I would like to draw
is that many of you flew in for this meeting and if you
looked on the landing pad, you would have seen an employee
there with hearing protection. Now, let's take that same
analogy and let's engineer the noise out of jet engines.
Well, I would submit to you that we could do it, but you
would not have been able to afford to fly here. That's the
thing. We recognize hearing protection for those
individuals involved in that activity. It's very suitable
for protecting their hearing. It's recognized by the
government as a suitable means and so I think that's where
our nervousness is coming. What is an engineering control.
How effective will it be or are we going to pump money into
a black hole when we could effectively treat that with
hearing protection and provide for the employee's
protection. So I would ask you to look at that as -- there
are certain tasks in the mining industry where we think
there are black holes. We would pour thousands and
thousands of dollars and not produce the desired result. An
I think the analogy maybe of a person working around the
airplanes that you flew in on and having adequate hearing
protection may be a valid one.
And then the last comment I would make is, I
represent a fairly large company in the mining industry and
most of the people you've heard before. The vision I'd like
for you guys to carry back as you write this regulation is
for those that can't be here because they lacked the
financial resources to send someone, and there are many,
many operators out there with 25 to 30 employees that are
both very safe and very respected in the mining community,
yet if there is a burdensome task put on them that may
affect their ability to operate. So those are my comments.
MR. THAXTON: I have a question in regards to your
statement about the records availability.
MR. MCCABE: Uh-huh.
MR. THAXTON: You suggest that they should be
better kept in central or regional type facilities and be
made available when MSHA inspection people come on site.
Given the fact that we are an enforcement agency and we
can't tell you in advance when we are coming --
MR. MCCABE: Right.
MR. THAXTON: -- and part of that is that we are
to inspect the records at the time that we do the
unannounced inspection, do you foresee these regional
facilities being able to produce and have those records at
the mine site, say, within an hour of the inspectors request
for such records?
MR. MCCABE: I think an hour would be too
optimistic because if you're looking at 19 or 20 employees
and you want to look at all their records, I think what you
are seeing in the mining community is a willingness to --
that if there was a valid concern, that we would be able to
-- we deal with your inspectors at least twice a year. They
come to all of our facilities. We're willing to sit down
with them, talk with them about any particular facility.
I'm not so sure what -- what information and the speed of
that information having it here on this site today has any
protection of the worker, as far as hearing protection, that
you could not receive within a week or ten days and still --
MR. THAXTON: Well, the purpose of being able to
look at their records during our inspection is, one, it's
unannounced inspection and that those records can't be
changed to accommodate the fact that they are going to be
looked at. So it's an unannounced inspection and that would
have to be accommodated --
MR. MCCABE: Right.
MR. THAXTON: -- in any record keeping scenario
that we would come up with.
MR. MCCABE: Well, what I would ask you to do is
look beyond what we do right now. We're talking about
writing a new regulation and we're talking about the world
is changing before us every day. We are talking about the
electronic media. And what I am saying is, let's don't
think of how we do things today. Let's think of how this
thing will work because when we write it, we want to write
it the correct way and we want to write it not from where we
are today but where we are moving in the future and the
future is electronic media, it's faxing, it providing to you
next day air or whatever the information you need. We
certainly know where in Georgia the Macon local office is
and they know where we are. So I'm saying just don't think
in obsolete ways. I think -- I don't think there is any
need for an MSHA inspector to come and say let me look at
all your noise studies. Let me look at your threshold
shifts. If they want to look at them, let them come to my
office. We are strategically located or request that I go
there or mail to me.
MR. THAXTON: That's why I am asking if our
inspector shows up on the site and he makes that request
with the electronic age and computers and everything, would
you conceive that there would be a terminal available that
you would pull that information and have it available for
them during that inspection?
MR. MCCABE: No, I would not. I would not
conceive of that. I would conceive that this information as
being low priority and that this information would be -- if
I were MSHA I would want to address this as a total picture
and not just a little peek. So if I wanted to find out what
my company was doing, I'd want to do a little more thorough
investigation of that inspection dealing with a health and
safety professional. You're going to be looking at records
and the person that's providing you is production oriented,
he might not even know what he is showing you. I think if
you really want to find out what's going on in our
companies, then you deal with the health and safety
professionals. Most of those people are located regionally
in the area and will be glad to work with at least the
people in Georgia that I know of.
MR. THAXTON: Thanks.
MR. CUSTER: That was one of the areas that we
requested additional input from the mining community was the
record keeping, especially electronic record keeping. So
obviously you're in favor of electronic record keeping. Let
me ask you this. Would you be in favor of submitting those
electronic records to MSHA to some central database where we
would maintain copies of those records, since they are in
electronic form and certainly easily transferable through
phone lines.
MR. MCCABE: Right. You know what, I don't want
to speak for any industry. I don't even know if I want to
speak for my company --
(Laughter)
MR. CUSTER: I was just asking for your opinion.
MR. MCCABE: -- No, but let me give you my
opinion. I'd much rather sit down with an MSHA inspector
and review that data in its totality rather -- because I
would imagine that you guys get things every day that you
really don't look at. So if you want to find out what's
going on in the industry, if you want to find out what's
going on in my company, let me sit down with the inspector.
Let's look at the records and look at any shift that may
take place. Let's look at our occupational health and
safety programs related to noise exposure and hearing
conservation and that's what I see, you will get a better
picture by dealing with me and if you want to meet me at a
specific mine site, we'll arrange that.
MR. CUSTER: I can appreciate what you are saying
but you need to temper what you see your need as being --
you need to temper that with our need to review those
records in a rapid manner because you understand some
installations an inspector can duly complete inspection in a
day or less.
MR. MCCABE: Right.
MR. CUSTER: And that presents a problem for MSHA
relative to enforcement. So we would need to find similar
ground.
MR. MCCABE: Okay. I think you're going to find
that going to an individual mine site and looking at
records, I think it is going to be very difficult for the
industry to give you the type of records you want because
you are dealing with people again who are production quality
and safety oriented, and they're not going to have the
expertise or the desire, quite frankly, to talk with you
about medical records of employees. And, again, it touches
on this issue of confidentiality. I don't know what you
want to see, and I know you have a right to see it, but I
would prefer rather than us just blindly, electronically
giving you information that you come and ask what you want
to see and we'll be glad to show it to you.
MR. CUSTER: Let me follow-up with one or two
other questions. You had mentioned about the difficulty of
maintaining the training records, for example --
MR. MCCABE: Uh-huh.
MR. CUSTER: -- on site. What do you do now for
Part 48 records? Because that is a site retainment
requirement for a two year period.
MR. MCCABE: Right. As I said before, I'm not
speaking for my company. I'm speaking for people -- and as
the rule is written, and I think the rule ought to be
written correctly to deal with all of the mining industry.
I employ 230 people at one site, 200 at a site in
Mississippi, 200 at a site here, there. It's not a problem
for us, but what I think is going to be a burdensome problem
is for those operators of 19 and 20 people. Now we've moved
beyond just training, we touching on medical documents and I
think we need to preserve the confidentiality of those, and
they are not going to be readily available at these sites
anyway. What we do as far as Part 48, we do the training
document, we do the training and keep it in an employee
training record. All medical information, whether it be
chest x-ray, pulmonary x-ray, function tests or audiometric
test, it's kept in a confidential medical file.
MR. CUSTER: Let me just ask one more question.
MR. MCCABE: Okay.
MR. CUSTER: We beat the 14 hour quiet period to
death.
MR. MCCABE: Right. Well, let me say this. I
don't think we've beat it to death. We want you to hear --
We want you to hear how troublesome and how impractical and
how we don't think it's going to produce the results you
want here. That's why you are hearing it time and time
again. Okay. Excuse me.
MR. CUSTER: My question then would be that there
are those companies that are under the jurisdiction of both
MSHA and OSHA and I just wondered how these companies that
have been dual -- the dual responsibility to comply with
various health and safety acts, how do they handle the OSHA
14 hour quiet period?
MR. MCCABE: I am of the opinion that the OSHA 14
hour quiet period can be handled with hearing protection and
so that's the way they hear it, and that's what this
industry is asking for. Don't supersede that. Don't go
beyond that. Duplicate it. I mean, am I --
VOICE: That's correct.
VOICE: Correct.
MR. MCCABE: We're saying duplicate it. We feel
that hearing protection prior to an audiometric exam and us
observing the employee and ensuring that they have it on is
the best way to go. We think OSHA has the better idea. And
let me say this. Your allusion to MSHA/OSHA. We are
totally under MSHA, and I'm glad we are totally under MSHA.
We know the rules. We don't have any conflict between
OSHA/MSHA, and I think we work very well with MSHA.
MR. CUSTER: I'm glad you're there too.
(Laughter)
MR. MCCABE: I think the tone of this meeting has
-- there's not been any adversarial remarks made. The tone
of this meeting is -- There are certain things within the
provision we think you can do a better job of, and some of
it has been asked for you to duplicate what OSHA is doing
and we're all in the business of protecting the employee and
the employee's health. So I would ask that you take -- just
kind of get a visual feeling for the small operators that
are doing a good job out there, how these regulations might
adversely impact them and we need to all look for the
practical solution, and I alluded to the person who works
around the jet airplanes. That is a very, very viable
source of hearing protection recognized by the government.
It would be very difficult, probably cost prohibitive, to
engineer out the noise from commercial airline travel. So
that's the kind of things we're a little bit concerned
about. We've got some 20 and 30 year old processes out
there and you say that your engineering control language may
not be what we think it is, but that's our fear is that they
don't make the rotary kilns anymore, and you're using a 20
or 30 year kiln, and they are noisy and we think that we can
adequately protect employees hearing by using hearing
protectors.
Any other comments?
MS. PILATE: You mentioned that you have 230
employees in Birmingham, 200 at other sites in the south.
I'm curious to know in any of those plants do you have
existing HPP programs?
MR. MCCABE: Yes, we do. And that's 230 employees
in Georgia, 230 employees in Mississippi. We have
approximately 40 employees in Oregon headquartered out of
Chicago, Illinois. Yes, we do. In each one of those we
have hearing conservation programs with audiometric testing
and we do that with mobile health testing units. I think
that is one point I did not make. I think if you were to
really write into law a 14 hour quiet period, you're going
to take mobile health testing out of the picture, and we in
the mining industry, we use mobile health testing for a lot
more than occupational exposure. We use it for cholesterol
screening, blood pressure and I think speaking to you from a
professional standpoint where I line up these mobile testing
units, you're going to take them out of the picture and
you're going to adversely impact mining.
And the second part of your question? I'm sorry,
I was a little lengthy.
MS. PILATE: I'm curious to know how much you pay
for your tests with your mobile testing unit.
MR. MCCABE: Basically just for hearing aspect,
anywhere from 12 to 20 dollars, based on the number of
employees. The more employees, the cheaper you get the
service. But right now we're averaging about $63 an
employee for a chest x-ray, pulmonary function test,
audiometric test, height, weight and blood pressure.
MS. PILATE: Do you also have a separate noise
training program?
MR. MCCABE: Yes. We do the eight hour MSHA
training program annually, refresher training and of that
eight hours approximately 45 minutes to an hour is spent on
our hearing conservation program. In addition to that we
also do monthly training beyond that and one of our topics
each year is hearing conservation.
MS. PILATE: You mentioned that you see
engineering controls that are difficult to control
financially as being black holes. What in your mind
constitutes a black hole and what measures are taken?
MR. MCCABE: Black holes could be anything that
you put enough money into that was not successful, that put
you out of business, or put you at an unfavorable
competitive edge with other international companies.
MS. PILATE: What are some of the controls you
have in mind?
MR. MCCABE: What are some of the things that I
think would be very difficult to do? The analogy that --
Well, the example that's been used by other mining companies
are ball mills, rotary kilns that have been installed in
buildings over 20 to 30 years ago. Personally I don't know
how you could make a jackhammer less noisy. I would say
that -- and I think it's been mentioned before here is
things like bulldozers. Those things are very difficult,
and I think a lot of good players in this industry have done
a lot of work in that area and are still requiring the
employees to wear hearing protection.
MR. VALOSKI: Any other questions?
(No response)
MR. VALOSKI: I think we have exhausted our
questions for you, Mr. McCabe.
MR. MCCABE: Okay. Thank you very much.
MR. CUSTER: I need to make a clarification to a
morning statement. Mr. Howard pointed it out. Sand and
gravel operations are not exempt from Part 48 training.
They are only exempt from the MSHA enforcement of it. Thank
you, Ken.
MR. VALOSKI: Okay. Our next speaker will be Mr.
Maurice Gibson from A&M Products.
MR. GIBSON: Good afternoon. My name is Maurice
Gibson. I am HR Manager at A&M Products.
That's G-i-b-s-o-n. And I promise to be real brief since I
think I am one of the last speakers.
We have beat a lot of issues around, some of them
too death, I would agree with that, so I won't rehash a lot
of them, except for going on the record and saying that we
at A&M Products and as part of the Georgia Mining
Association also feel that the 14 hour quiet period without
hearing protection poses a challenge for us as far as
compliance. I would say that we feel that hearing
conservation program is important, not only for miners but
all employees within our organization, and we fully support
the direction that MSHA's taking in this area.
The only other point that I want to make before I
sit down this afternoon is, we have a concern that your
audiometric testing devices and the means for it collecting
data does not have any standards set and I do not love OSHA
over MSHA, but OSHA does have ANSI standards that they go
by. One of the concerns that we have here is, as some of my
other colleagues have mentioned, smaller operators. As you
are establishing your hearing conservation programs,
everybody should have the same playing field as far as
calibration of equipment as far as standard procedures for
collecting that data. I think you'll find a lot in the
smaller communities that standards as far as calibration of
equipment, they are not well established. It also opens up
an arena in another area when you do have an STS or a
reportable hearing loss as to validation of data, when you
get into the workers' comp arena.
So to be very brief, you know, there are a couple
of ANSI standards that I would like to go on record as
saying that we'd like to see as a part of the noise
standard. One is considering audiometric test rooms is ANSI
standard 1.4-1971 and S1.11-1971 and for calibration of
audiometric equipment is ANSI standard 3.6-1969. Once again
I do want to reiterate that we do have an annual program of
audiometric testing that we do adhere to these ANSI
standards as far as calibrations on site. We have
approximately 100 employees on site, but we are part of a
bigger company, First Brands Corporation, that has 3000
employees worldwide and throughout the corporation is a part
of the Occupation Health Manual that we do provide a hearing
conservation program for employees, and we do fully support
what you are trying to do here because we have been under
OSHA reign. Mining is a new industry to us, about three or
four years now as A&M Products. So we brought OSHA
standards over. What we'd like to see is that you listen to
our comments here this afternoon and try to make the
regulations something we call all comply with and make the
work environment better for our employees. Thank you.
Any questions.
MR. CUSTER: I've got a question. You mentioned
that you are international in scope and the question I would
have is, are you familiar with some of the ISO standards
that would be similar to what we are proposing here or what
OSHA has?
MR. GIBSON: No, me personally, I am not, no. No,
sir. So I won't even sit here and do a dance for you.
MR. CUSTER: Okay. I was going to ask you to
comment on how you felt about it.
MR. GIBSON: First Brands, as a corporation, any
time -- we've been growing over the last five years. It
used to be Union Carbide before we became First Brands. We
make products such as Glad, Glad-Lock, Johnny Cat, some
other consumer brands and we are growing through
diversification and actually purchasing other businesses and
what we've done as a corporation is take our Occupational
Health Manual regardless of other standards and make sure
that it applies to whatever standards are in the industry
and we just take that throughout the corporation and make
that a standard practice whether it is required or not. For
instance, the annual hearing tests that we do on site and
the record keeping that we do has not been something that
has necessarily been a compliance issue with MSHA, okay, but
we decided to do that when we bought this business, and I'm
sure that someone at Corporate is looking at ISO regulations
to make sure that the Occupational Health Manual that we
have in place meets those standards and if they exceed the
standards, fine.
MS. PILATE: For A&M Products, is that coal, metal
or nonmetal?
MR. GIBSON: It's non-metal. Surface mining.
MS. PILATE: Surface mining.
MR. GIBSON: Uh-huh.
MS. PILATE: How many employees do you have there?
MR. GIBSON: At my particular site we range
between 75 and 100 employees annually.
MS. PILATE: You mentioned that you have an
existing on site HPP Program. Do you have a contract
audiologist or do you have a staff audiologist?
MR. GIBSON: No. We do have a contract. We deal
with TK Group out of Illinois, Rockford, Illinois. As Dewey
mentioned before, Mr. McCabe, they are a mobile test unit
that comes on site. One of the challenges I've had in the
community itself is with new hires and getting a baseline
and I've had to search very hard to find someone in my
community that meets the ANSI standards as far as test
equipment calibration. So we found an office. We actually
had to work with that physician's group to bring their
standards up to meet those ANSI standards. So that's the
way we perform. We come in once a year with a mobile unit
that completes all of our audiometric testing as well as our
pulmonary functions testing on site.
MS. PILATE: Do you know offhand how much you pay
for the audiometric testing component?
MR. GIBSON: Yeah, we're in the same range as what
you have heard here this afternoon and this morning. Twenty
for the hearing and 55 for pulmonary. During that training
-- I think if I am being astute with your line of
questioning previously -- during that testing we do do
training as well. The employees get 30 minutes worth of
hearing conservation training as far as how to wear hearing
protection, the benefits from hearing protection, their
rights as far as the hearing conservation program is
concerned in the plant.
MS. PILATE: For the TK Group, besides paying the
$20 per employee for the audiometric test, do you also have
to pay an annual contract fee?
MR. GIBSON: No, we do not. The only other
service fee that we pay for them would be when they -- as
far as travel expense and that kind of thing and if we were
to ask them to come back again some other time during the
year, that would be an added cost to the business.
MR. VALOSKI: I have two questions for you. One
you said you had a problem getting baselines. Where are you
located?
MR. GIBSON: We are in Wrens, Georgia. And when I
said I had a problem, a challenge -- I like that word better
than I like problem.
(Laughter)
MR. GIBSON: A challenge.
MR. VALOSKI: Well, using your word challenge.
MR. GIBSON: Okay. Yeah. In Wrens, Georgia,
Jefferson County, there is a lot of industry in surrounding
counties. You've heard from Thiele. They are in
Sandersville, Georgia, which is about 30 or 45 miles from
us, but I think -- well, maybe you wouldn't, you guys have
probably been at this a lot longer than I have, but
community to community there are different occupational
services available to people who are trying to meet
standards. In my particular community in all areas, not
only auditory but also pulmonary to stay local in Jefferson
County has been a challenge because a lot of local
physicians is just not set up, even the hospitals are not
set up to meet those strict requirements that we have as far
as getting valid data. Because the last thing you want to
do is get invalid data on somebody's baseline. So...
MR. VALOSKI: So the physician you found is close
to where you are located?
MR. GIBSON: Right. Which is another thing I have
to look at as far as my employees. I do send them to
August, which is probably another 20 miles away from where
this physician's office is located, for other things, but I
wanted to find somebody as close to my service area as
possible.
MR. VALOSKI: And my last question is, you talked
about having the TK Group come in --
MR. GIBSON: Yes.
MR. VALOSKI: -- and do the testing. What happens
when you find STS? Do you refer them to somebody else for a
follow-up examination to see if the STS is persistent?
MR. GIBSON: Yes. Whoa, what I immediately do is
set them up with that physician I talked to you about for a
follow-up exam to make sure that that wasn't due to -- For
instance, I had a case of a young man that had been at the
lake -- fortunately, he was a very honest individual -- and
gotten an ear infection the day before the exam. His STS
was above 25 dB. Of course TK Group sent back to me within
the week, you know, that I had a STS possibility of
recordable hearing loss with this particular individual and
that I needed to -- advising me to seek further occupational
health services to find out whether this was a STS or not.
So I sent him to the physician. He also told the physician
at that time that he had a hearing infection during the
test. I got medical certification on that, but his follow-up exam, which I had to send back to TK Group because they
deal with our record keeping showed in fact that his hearing
had not suffered a STS.
MS. WESDOCK: How soon was that between, you know,
your finding out of the STS and the notification of the
miner? How soon was the notification?
MR. GIBSON: Well, with me in my operation, we're
talking -- you've got to remember, gosh, I know everyone on
a first name basis, you know. Seventy-five to 100 people is
not a lot of people. So as soon as I got the notification
from the TK Group, probably two or three days because at the
time this guy was out of work on vacation and when he got
back to work I was able to give him proper notification.
MS. WESDOCK: And how soon was the follow-up done?
MR. GIBSON: Examination? That same week. So all
total you're probably talking about -- between TK Group
actually getting the information processed, probably about
15 to 20 days after the initial exam before I had
information and had him re-checked. One thing I want to
make sure is clear for the record, you know, it's a lot
different when you're talking about two to three hundred,
four hundred, five hundred, six hundred people facilities.
A lot of times I can turn things around quicker than a lot
of the larger operators can. That probably wouldn't happen
in, say, a facility that we have in First Brands. There's
not even a miner facility that has five or six hundred
employees. Just from a logistics standpoint. So I do go
back and support what you've heard today about, you know,
the 10 day period being a little bit restrictive and the
fact, you know, to be effective, you know, I think we should
get 20 to 30 days to notify and to have results.
MR. GIBSON: If you don't want to go much further
than that, you know, you don't want to be at risk, you want
to get that problem taken care of.
MS. WESDOCK: Was the authorization in writing or
just oral?
MR. GIBSON: Oh, no. What I did, I actually --
the TK Group spits out a form for us, a place for my
signature as well as the employee's signature. So I sat
down with that person and covered it verbally and in writing
and he got a copy of the notification and I retained a copy
for my records to go in his file that we had talked to him
about that.
MS. WESDOCK: Thank you.
MS. PILATE: I have some more questions. For the
follow-up exam that you mentioned, was that a follow-up
audiogram or was it an audiological exam?
MR. GIBSON: It was an audiogram because we wanted
to validate the results. Now, if that had turned out to
present the same information that was received during the
initial testing, then we'd went to further -- provided
further care or at least advised him of the need.
MS. PILATE: Have you ever had employees to refuse
an audiometric exam?
MR. GIBSON: No. No, I haven't. It's really
because when they come in the door there are a couple of
things that we make clear up front as far as safety and
health. You know, you're going to have pulmonary, you're
going to have auditory tests and you are also going to be
drug tested once a year -- at least once a year. We don't
say it is a condition of employment, but we do -- pretty
much have established that as a practice. So it's not
really a big deal in our plant.
MS. PILATE: And have you ever had an employee
refuse to use the hearing protection?
MR. GIBSON: Sure we have. Do you want to know --
MS. PILATE: Yes.
MR. GIBSON: In our plant, okay, in our
corporation, as long as it is clearly identified in the
employee's policy manual, as far as our safety program, what
we consider required personal protective equipment, which is
hearing protection in certain areas, we say up front that we
can mandate that you wear hearing protection, and much like
the gentleman from the cement association said, it's not an
option. There's no difference between that, safety glasses,
steel toes and hard hats. If we have hearing protection
required, we've covered that policy with you in this area
and you're not wearing it, it's a safety violation and we
take them through the progressive disciplinary process.
Because you just don't want to get into the arena of, you
know, there's a certain liability that goes along with
people, you know, not wearing protection and you being
knowledgeable of that as an operator. I guess it goes into
your citation about being negligible, and we don't want
that, right?
(Laughter)
MS. PILATE: Thank you.
MR. VALOSKI: Thank you very much, Mr. Gibson.
We've got two more people signed up, but I don't
believe they've shown up yet, Dr. Gibbs or William Wolfe?
(No response)
MR. VALOSKI: Is there anybody else in the
audience that would like to give a statement to the panel?
(No response)
MR. VALOSKI: Since nobody would like to give us a
statement and these gentlemen have not shown up, why don't
we take a recess until 3:30 and we will reconvene the public
hearing at that time. Thank you.
(A short recess was taken.)
MR. VALOSKI: It is now 3:30. We have nobody in
the audience and nobody has signed up, therefore we're going
to call another recess until 4:30. Thank you.
(A short recess was taken.)
MR. VALOSKI: It is now 4:30. We still do not
have anybody in the audience and nobody else has come to
testify, therefore we are going to take another brief recess
until 5:00 p.m. Thank you.
(A short recess was taken.)
MR. VALOSKI: It is now 5:00. There is nobody in
the audience and we have no more speakers. This meeting is
adjourned for today. Thank you very much.
(Whereupon, the public hearing was adjourned at
5:01 p.m., May 28, 1997.)
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// C E R T I F I C A T E
Case Name: MSHA Public Hearing
Date: May 28, 1997
Location: Atlanta, Georgia
I, Susan M. Breedlove, do hereby certify that the
foregoing pages represents a true and correct transcription
of the events which transpired at the same time and place as
set out in the caption, to the best of my ability.
__________________________________________
SUSAN M. BREEDLOVE
Certified Court Reporter
HERITAGE REPORTING CORPORATION
1220 L Street
Washington, D.C. 20005
(202) 628-4888